.V 


INTERNATIONAL  LAW 
CODIFIED 

AND 

ITS  LEGAL  SANCTION 

OR 

THE  LEGAL  ORGANIZATION  OF  THE  SOCIETY 

OF  STATES 

Le  Droit  sera  un  jour  le  souverain  dit  Monde 

MiRABEAU 


BY 
PASQUALE  FIORE 

PROFESSOR  OF  INTERNATIONAL  LAW  AT  THE  ROYAL  UNIVERSITY 

OF  NAPLES;  SENATOR  OF  ITALY;  MEMBER  OF  THE 

INSTITUTE  OF  INTERNATIONAL  LAW 


TRANSLATION  FROM  THE  FIFTH  ITALIAN  EDITION 
WITH  AN  INTRODUCTION 

BY 

EDWIN  M.  BORCHARD 

SOMETIME  ASSISTANT  SOLICITOR,  DEPARTMENT  OF  STATE 
PROFESSOR  OF  LAW,  YALE  UNIVERSITY  SCHOOL  OF  LAW 


'  \'\*  \'i  ^'. '.  :..•..  •    ^  ..• »  .' 


>"»-■> 


,  r  •    1  •  »    •  »• 


NEW  YORK 
BAKER,  VOORHIS  AND  COMPANY 

1918 

114831 


Copyright,  1918 

BY 

BAKER,  VOORHIS  &  COMPANY 


•    •  •    •     '  •  « 


INTRODUCTION 

International  law,  in  so  far  as  it  relates  to  the  rules  governing 
war,  is  to-day  undergoing  the  same  experience  it  has  had  many- 
times  in  the  last  two  hundred  years.  Each  of  the  great  conflicts 
in  the  history  of  international  relations  has  threatened  with  de- 
struction the  most  sacred  institutions  of  the  law  of  nations; 
yet,  notwithstanding,  the  progress  of  civilization  has  wit- 
nessed the  tissue  of  that  law  emerge  from  each  crisis  tougher  and 
firmer. 

The  Thirty  Years'  War,  the  Wars  of  Louis  XIV,  the  many 
continental  wars  of  the  eighteenth  century  (particularly  those  of 
its  last  two  decades),  the  Napoleonic  struggles,  have  each  been 
followed  by  an  era  of  law-making  designed  to  establish  a  more 
orderly  regulation  of  international  relations.  The  necessity  for 
greater  order  and  the  strengthening  of  international  law  has  been 
emphasized  in  the  last  half-century,  when  the  remarkable  develop- 
ment of  commerce  and  industry,  with  the  realization  of  the  inter- 
dependence of  nations,  led  to  several  international  conferences 
terminating  with  those  of  The  Hague,  whose  activities  seemed  to 
bring  very  near  the  day  of  the  international  legislature.  In  trou- 
])lous  times  like  the  present,  it  is  not  sufficiently  recalled  that  al- 
though international  relations  in  time  of  peace  have  grown  con- 
tinually more  complex,  the  rules  governing  those  relations  are 
commonly  observed  and  judicially  enforced.  Moreover,  the  vast 
growth  in  arbitration  during  the  last  century  affords  unmistakable 
evidence  of  the  toughening  fibre  of  the  law  and  its  processes.  Even 
the  laws  governing  war  are  not  without  their  sanction,  as  was 
shown  in  the  Russo-Japanese  war.  Only  when  a  majority  of  the 
Great  Powers,  impelled  by  the  exigencies  of  the  moment  and  their 
physical  ability  to  depart  from  its  recognized  precepts,  undertake 
to  violate  international  law — fortunately  only  an  infrequent  occur- 
rence— does  the  weakness  of  the  system  afford  ground  for  com- 
plaint and  manifest  the  necessity  for  improvement.  Its  defects 
consist,  therefore,  not  in  the  absence  of  commonly  recognized  rules 


VI  INTRODUCTION 

to  govern  the  situations  usually  arising,  nor  even  in  their  general 
non-observance;  but  rather  in  the  physical  inability — under  the 
present  international  organization — to  enforce  its  sanctions  when 
the  Great  Powers  simultaneously  disregard  its  provisions,  and  in 
the  lack  of  a  sufficiently  strong  legal  organization  of  the  nations 
of  the  world  to  compel  joint  action  if  the  rules  are  violated  by  any 
member  of  the  society  of  nations.  This  end,  to  bring  about  the 
reign  of  law  among  nations  and  to  establish  a  legal  organization 
among  them,  with  agencies  and  instrumentalities  capable  of  en- 
forcing the  rules  of  law,  has  been  the  aim  of  numerous  thinkers 
and  publicists,  among  the  foremost  of  whom  is  the  great  Italian 
jurist,  Pasquale  Fiore. 

Fiore,  the  leading  Italian  authority  on  public  international  law, 
was  born  April  8,  1837,  and  devoted  a  long  and  useful  life  to  the 
study  and  development  of  international  law — as  a  jurist,  teacher, 
writer.  Senator  of  Italy  and  legal  adviser  to  the  Italian  govern- 
ment. With  the  usual  preparation  in  law,  theology,  and  philos- 
ophy— which  subject  he  taught  for  two  years  at  Cremona — he 
entered  in  1863  upon  his  career  in  the  science  with  which  he  will 
always  be  identified,  by  accepting  an  appointment  as  professor  of 
international  law  at  the  University  of  Urbino.  In  1865  he  was 
called  by  the  University  of  Pisa;  thence  in  1876,  he  went  to  Turin 
and  in  1882  to  Naples,  where  he  occupied  the  chair  of  international 
law — and  for  some  time  that  of  comparative  law — until  the  time 
of  his  death,  December  17,  1914. 

In  1865,  while  professor  at  Pisa,  he  published  the  first  edition 
of  his  well-known  work  Diritto  internazionale  pubblico,  the  first 
systematic  modern  treatise  on  international  law  published  in  Italy. 
As  a  disciple  of  the  great  Italian  jurist,  Mancini,  the  father  of  the 
school  and  doctrine  of  nationality,  Fiore  published  in  1869  his 
Diritto  internazionale  privato.  Both  works  were  marked  by  orig- 
inality and  an  objective  scientific  point  of  view  then  rare  among 
writers  on  international  law.  His  active  participation  as  consulting 
counsel  in  numerous  cases  and  his  unremitting  labors  in  the  con- 
structive work  of  the  Institute  of  International  Law  progressively 
added  to  the  scientific  and  practical  merits  of  his  treatise  on  public 
international  law  as,  with  the  years,  new  editions  were  issued,  both 
in  Italian  and  in  foreign  languages. 

Fiore's  aspirations  for  the  legal  organization  of  the  society  of 


INTRODUCTION  VH 

nations  and  the  safeguarding  of  international  law  by  joint  action 
may  be  traced  to  the  Wolffian  doctrines  of  the  magna  civitas  and 
the  Ciceronean  principles  of  the  universality  of  law.  They  were 
fortified  by  his  training  in  philosophy  and  in  civil  law,  by  his  many 
years  of  study  of  comparative  law,  by  his  legal  activities  as  private 
counsel  and  adviser  of  his  Government,  and  finally  by  his  profound 
knowledge  of  history  and  of  international  law.  With  this  equip- 
ment, fortified  by  experience,  he  began,  in  his  fiftieth  year,  the 
preparation  of  the  constructive  work  herewith  presented  to  the 
English-speaking  world  under  the  title  "International  Law  Codi- 
fied." 

In  this  work,  which  was  first  published  in  1890  under  the  title 
7/  diritto  internazionale  e  la  sua  sanzione  giundica,  Fiore  has  syn- 
thesized the  fruits  of  his  many  years  of  study  and  experience  by 
setting  forth  a  plan  of  international  organization  with  the  rules 
of  law  to  govern  the  relations  between  states.  His  work  is  not  a 
code  of  existing  international  law,  like  that  of  Bluntschli  and  of 
Field,  but  a  proposed  body  of  rules  which  should  govern  states 
in  their  mutual  relations,  de  lege  ferenda.  His  unusual  equipment 
and  authority  give  weight  to  his  recommendations.  His  proposals 
are  founded  in  part  upon  positive  law,  in  part  upon  the  accumu- 
lated labors  of  the  Institute  of  International  Law  in  the  reform  of 
international  law,  in  which  Fiore  took  so  prominent  a  share,  and 
in  part  upon  his  own  solutions  for  the  existing  defects  in  the  law 
of  nations  which  matured  thought  and  experience  had  dictated.  It 
was  a  matter  of  justifiable  pride  with  him  that  the  Hague  Confer- 
ences had  transformed  into  legislation  so  many  of  the  rules  he  had 
advocated  and  so  many  of  the  proposals  arising  out  of  the  collective 
scientific  labor  of  conferences  in  which  he  had  participated.  His 
ideal  of  the  magna  civitas  and  the  universalization  of  international 
law  seemed  to  him  to  approach  realization  with  the  successful 
meetings  of  the  Hague  Conferences.  Yet  he  expressly  rejected 
the  implication  that  all  his  proposals  could  be  immediately  trans- 
lated into  positive  law,  a  reservation  which  the  present  crisis  in 
international  relations  has  justified. 

Throughout  his  work  he  has  endeavored  to  find  a  feasible  rem- 
edy for  the  recognized  defects  of  the  existing  system — the  divergent 
doctrines  in  certain  particulars  of  the  two  principal  schools  of 
international  law,  the;  Anglo-American  and  the  continental,  es- 


viii  INTRODUCTION 

pecially  in  their  views  as  to  the  relation  of  international  law  to 
municipal  law;  the  absence  of  any  recognized  method  to  change 
a  rule  of  international  law  or  to  repeal  an  antiquated  or  obsolete 
rule,  inapplicable  to  changed  conditions;  the  absence  of  any 
method  to  interpret  uniformly  an  obscure  or  ambiguous  rule  of 
law;  the  want  of  any  machinery  to  compel  nations  to  submit  their 
disputes  to  arbitration;  and  the  lack  of  any  substitute  for  force 
and  war  in  effecting  political  changes,  a  phenomenon  which  history 
has  shown  to  be  inevitable. 

To  meet  these  admitted  defects  of  the  existing  order  he  has  pro- 
posed (1)  the  periodical  meeting  of  a  Congress  which  shall  have 
the  power  to  legislate  for  the  magna  civitas  and  provide  means  for 
the  enforcement  of  the  rules  of  law  established,  by  authorizing 
collective  action  by  states;  and  (2)  the  convening  of  a  Conference, 
which  shall,  on  the  request  of  any  state,  settle  political  contro- 
versies, interpret  ambiguous  rules  of  law,  and  insure  the  execution 
of  rulings  of  the  Congress  by  referring  the  case  to  arbitration  or  to 
the  Congress  for  executive  action.  His  proposals  for  the  pacific 
settlement  of  international  disputes  have  already  been  fully 
adopted  and  probably  his  proposal  for  compulsory  arbitration  of 
certain  types  of  differences  will  some  day  find  universal  recognition. 

Among  the  numerous  reforms  and  progressive  doctrines  which 
Fiore  advocated,  several  will  command  the  attention  of  statesmen 
and  thinkers: 

He  contends  that  every  individual  has  international  rights  as  a 
human  being — apart  from  his  rights  as  a  citizen  of  a  particular 
state — which  must  be  universally  respected.  These  "international 
rights  of  man"  include  the  unrestricted  freedom  of  migration  and 
the  freedom  of  expatriation  without  the  state's  consent.  He  would 
place  limitations  upon  the  arbitrary  power  of  the  State;  thus,  he 
denies  the  State's  right  to  exclude  foreigners  or  to  prohibit  them 
from  acquiring  real  property. 

In  the  elaboration  of  his  plan  for  the  institution  of  the  Congress, 
the  Conference,  and  the  Court  of  Arbitration,  it  is  interesting  to 
observe  his  deference  to  public  opinion  as  the  controlling  agency 
in  the  shaping  of  foreign  policy.  He  is  an  ardent  champion  of  the 
democratization  of  foreign  policy;  and  his  denunciation  of  the 
evils  of  secret  diplomacy,  with  the  result  that  whole  peoples  are 
bound  to  treaties  and  alliances  without  their  knowledge  or  con- 


INTRODUCTION  ix 

sent,  lend   authoritative  support  to  the  principles  of  the  Union 
for  Democratic  Control  in  England. 

Fiore  believed  firmly  in  the  principle  that  international  law  could 
at  no  period  be  permanent  and  definitive,  but  that  it  changed  and 
grew  with  the  times.  He  was,  therefore,  of  the  opinion  that  the 
Congress  should  not  be  a  permanent  legislature,  but  should  meet 
only  at  periodic  intervals  or  as  exigencies  required.  He  believed 
that  the  people  should  be  specially  represented  in  the  Congress, 
because  they  have  international  rights  distinct  from  those  apper- 
taining to  the  State,  and  the  force  of  public  opinion  he  would  es- 
pecially respect.  But  he  would  confine  the  right  to  vote  only  to  the 
well-informed  classes. 

He  was  opposed  to  any  permanent  confederation  of  states  where 
the  Great  Powers  prevailed,  and  he  decried  any  combination  to 
maintain  the  status  quo,  such  as  Rousseau's  Project  of  Perpetual 
Peace,  in  which  some  may  find  a  prototype  for  the  proposed  League 
to  Enforce  Peace.  He  considered  arbitration  as  inadequate,  as 
most  of  the  complex  questions  which  disturb  the  peace  of  nations 
cannot  be  submitted  to  arbitration.  To  deal  with  these  questions, 
*  he  would  call  the  Conference  of  states,  a  quasi-judicial  body  vested 
with  power  to  adjust  political  differences,  and  an  instrument  de- 
signed to  take  the  place  of  force  in  the  settlement  of  international 
problems.  It  is  not  at  all  improbable  that  the  world  possesses  or 
can  develop  statesmen  of  sufficient  breadth  and  vision  to  accom- 
modate the  political  equilibrium  to  the  economic  and  social  virilit}' 
of  peoples,  and  thus  replace  the  present  artificial  system  by  which 
conflicting  ambitions  without  regard  to  larger  social  necessities 
ultimately  lead  to  destructive  clashes. 

In  the  new  edition  from  which  the  present  translation  has  been 
made  Fiore  has  substituted  for  the  term  "natural  law"  the  term 
"rational  law,"  which  he  regards  as  the  law  of  reason  and  as  a 
residuary  source  from  which  positive  law  is  derived. 

It  is  Fiore's  view  and  one  which  already  has  many  earnest  ad- 
herents, that  whenever  a  state  violates  a  rule  of  international  law 
in  its  relations  with  another  state,  the  immediate  damage  arising 
from  the  wrongful  act  not  only  violates  the  right  of  the  injured 
state  but  also  that  of  all  the  states  jointly  and  severally  interested 
in  the  legal  organization  of  the  society  of  states.  Hence  he  posits 
the  doctrine  that  all  the  measures  and  institutions  designed  to 


X  INTRODUCTION 

assure  the  authority  of  international  law  must  be  considered  within 
the  collective  protection  of  all  the  states  which  established  them. 
He  strongly  supports  collective  intervention  in  behalf  of  the  rights 
of  humanity. 

He  manifests  excellent  understanding  of  the  true  purport  of  the 
Monroe  doctrine  by  denying  its  efficacy  to  prevent  European 
nations  from  prosecuting  the  diplomatic  claims  of  their  citizens 
against  Latin-American  states  and,  if  necessary,  undertaking  col- 
lective interposition  to  effect  that  purpose.  He  rejects  the  exag- 
gerated views  of  its  meaning  which  prevail  throughout  the  world 
and,  not  least  of  all,  in  the  United  States.  Moreover,  in  the  matter 
of  international  claims,  he  considers  that  no  state  should  deny  a 
claimant  the  right  to  bring  suit  against  it,  if  an  adjustment  can- 
not be  made  diplomatically.  While  he  suggests  no  method  of  pro- 
cedure, others  have  advocated  an  International  Court  of  Claims. 

In  the  chapter  on  the  American  Institute  of  International  Law, 
one  of  the  two  new  chapters  added  to  the  previous  editions  of  the 
work,  Fiore  makes  the  fruitful  suggestion  that  the  so-called 
American  international  law  is  really  interstatal  law  in  the  par- 
ticular fields  in  which  it  is  applied,  as  distinguished  from  inter- 
national law.  This  view  has  been  adopted  by  von  Liszt;  and 
Alejandro  Alvarez,  the  learned  Chilean  publicist,  has  developed 
the  idea  into  several  different  divisions  of  international  law — 
continental,  interstatal,  schools  of  international  law,  etc. 

Not  the  least  valuable  contributions  of  Fiore's  work  are  his 
criticism  of  existing  institutions  of  positive  law  and  his  suggestions 
for  reform.  For  example,  in  the  matter  of  extradition,  he  is  op- 
posed to  the  principle  of  Italian  law  and  that  of  other  states,  often 
incorporated  in  treaties,  by  which  the  State  refuses  to  deliver  up 
its  own  citizens  on  a  demand  for  their  extradition.  Among  ques- 
tions arising  out  of  war,  he  condemns  severely  the  assumed  right 
of  belligerents  to  determine  for  themselves  without  restriction  the 
list  of  articles  they  will  consider  contraband  of  war. 

The  present  work  reached  its  fourth  edition  in  Italy  in  191L 
The  revision  of  that  edition  for  the  present  English  version  was 
the  last  scientific  work  of  its  distinguished  author.  Although  the 
present  edition  takes  almost  no  account  of  the  legal  problems  aris- 
ing out  of  the  European  War,  the  work  of  reconstruction  which 
must  follow  the  crisis  through  which  we  are  now  passing  will  find 


INTRODUCTION  XI 

a  fruitful  source  of  inspiration  in  the  thoughtful  contributions  of 
Pasquale  Fiore. 

The  Hterary  fruits  of  his  prolific  mind  are  represented  in  the 
appended  list  of  his  publications,  as  drawn  up  by  Professor 
Catellani : 

WORKS  OF  PASQUALE  FIORE 

Element!  di  diritto  costituzionale  e  amministrativo.    Cremona,  1862. 

Nuovo  diritto  internazionale  pubblico.  Milano,  1865.  Second  edition  en- 
titled Trattato  di  diritto  internazionale  pubblico,  3  v.,  Torino,  Unione 
tip.  editrice,  1879-1884.  Third  edition,  ibid.,  1887-89.  Fourth  edition, 
ibid.,  1904-06.  The  first  edition  was  translated  into  French  by  Pradier- 
Foder6  under  the  title,  Nouveau  droit  international  public,  2  v.,  Paris, 
Durand  et  Pedone  Lauriel,  1869;  and  the  following  edition  into  French 
by  Ch.  Antoine  (Traitfe  de  droit  international  public,  Paris,  Durand  et 
Pedone  Lauriel,  1885-86)  and  into  Spanish  by  A.  Garcia  Moreno  (Tra- 
tado  de  derecho  internacional  publico,  Madrid,  F.  Gongora,  1879-85,  in 
3  volumes  and  in  1894-95  in  4  volumes). 

Diritto  internazionale  privato,  Firenze,  Le  Monnier,  1869.  Second  reprint 
edition,  1874.  Third  edition,  entirely  revised,  Torino,  Unione  tip.  ed., 
1888-1891,  in  four  volumes.  Fourth  edition,  ibid.,  1902-1909.  The 
first  edition  was  translated  into  French  and  annotated  by  Pradier-Fod6r6 
(Droit  international  prive,  trad,  de  I'italien,  annot6,  etc.,  Paris,  Durand  et 
Pedone  Lauriel,  1875);  into  Spanish,  by  Garcia  Moreno  (Derecho  inter- 
nacional privado,  Madrid,  F.  Gongora,  1878,2  v.);  the  third  into  French 
by  Ch.  Antoine,  4  v.,  Paris,  Pedone  Lauriel,  1890-91,  and  into  Spanish 
by  Garcia  Moreno,  4  v.,  Madrid,  Gongora,  1888-91. 

Del  fallimento  secondo  il  diritto  internazionale  privato.    Pisa,  Nistri,  1873. 

Effetti  internazionali  delle  sentenze  e  degli  atti  in  materia  civile.  Pisa,  Nistri, 
1875. 

Delia  guirisdizione  penale  relativamente  ai  reati  commessi  all'estero.  Pisa, 
Nistri,  1875. 

Degli  effetti  estraterritoriali  delle  sentenze  penali:  della  estradizione.  Pisa, 
Nistri,  1877.  Translated  into  French  by  Ch.  Antoine  (Trait6  de  droit 
p6aal  international  et  de  rextnidition,  Paris,  Pedone  Lauriel,  1880,  2  v.) 
and  into  Spanish  under  the  direction  of  the  "Revista  general  de  legis- 
laciori  y  jurisprudencia"  (Tratado  de  derecho  penal  internacional,  Madrid, 
1880).  Of  this  work  and  the  one  preceding  on  civil  judgments,  a  Spanish 
version  was  published  by  Garcia  Moreno  (Efectos  internacionales  do  las 
sentencias  de  los  tribunales,  Madrid,  Gongora,  1888). 

Sul  problema  internazionale  della  societd  giuridica  degli  stati.  Torino, 
Stamperia  reale,  1878. 

Delle  aggregazioni  legittime  s(>condo  il  diritto  internazionale.  Torino,  Stam- 
peria reale,  1879. 

La  nave  mercantile  nei  suoi  rapporti  col  diritto  internazionale.  In  "  La  Legge" 
1882,  II,  col.  317. 

Les  lois  r^cllcs  et  les  lois  personnelles  d'aprSs  les  principes  du  droit  international 
et  la  jurisprudence.    In  "France  judiciaire,"  1882,  p.  117. 

Consideraciones  sobre  el  movimiento  juridico  internacional  moderno.  In 
"  Revista  general  de  legislacion  y  jurisprudencia."    Madrid,  1882,  p.  338, 


Xll  INTRODUCTION 

De  la  protection  des  marques  de  fabriqiie  et  de  commerce  d'aprSs  lo  droit 
international  positif.  In  "Journal  du  droit  international  prive,"  vol.  IX, 
1882,  p.  50. 

Agenti  diplomatici.    In  the  "Digesto  italiano,"  vol.  II,  Parte  1*. 

Adozione.    In  the  "Digesto  italiano,"  vol.  II,  Parte  1**. 

Delle  disposizioni  generali  suUa  pubblicazione,  applicazione  ed  interpretazione 
delle  leggi.  In  the  "Diritto  civile  italiano  secondo  la  dottrina  e  la  giuris- 
prudenza  esposto  dai  proff.  ecc,"  edited  by  P.  Fiore,  Napoli,  Marghieri, 
vol.  I,  1886,  vol.  II,  1887.    Second  edition,  NapoU,  Marghieri,  1908-09. 

Del  matrimonio  degli  stranieri  nel  regno:  osservazioni  sull'art.  102  cod.  civ. 
confrontato  con  I'art.  6  disp.  prelim.  In  "Diritto  e  giurisprudenza," 
vol.  1,  1886,  p.  447. 

De  la  retroactividad  de  les  leyes.  In  the  "Revista  general  de  legislacion  y 
jurisprudencia"  Anno  1886  et  seg.  (Chapters  of  the  Work,  "Delle  dis- 
posizioni generali,  ecc") 

Considerazioni  sull'art.  10  disp.  gener.  del  cod.  civ.  per  quello  che  concerne 
le  sentenze  straniere.    In  "Diritto  e  giurisprudenza,"  vol.  2,  1887,  p.  301. 

Delia  prova  della  legge  straniera  e  della  sua  retta  applicazione.  In  "  Monitore 
dei  tribunali,"  1887,  p.  1005. 

Degli  atti  dello  stato  civile  formati  in  paese  straniero.  In  "Diritto  e  giuris- 
prudenza," vol.  IV,  1889,  p.  253. 

Elementi  di  diritto  internazionale  privato.  Manuale  ad  uso  degli  istituti 
superiori.    Torino,  Unione  tip.  ed.,  1889. 

De  la  possession  en  droit  international  priv6.    In  "France  judiciaire,"  1889. 

Del  diritto  di  ritenzione  secondo  il  diritto  internazionale  privato.  In  "Mon- 
itore dei  tribunali,"  1889,  p.  301. 

Considerazioni  intorno  al  diritto  spettante  al  coniuge  divorziato  di  celebrar 
nuove  nozze.    In  "Legge,"  1889,  I,  col.  534  and  786. 

II  diritto  internazionale  codificato  e  la  sua  sanzione  giuridica.  Torino, 
Unione  tip.  ed.,  1889-90.  Second  edition,  ibid.,  1898.  Third  reprint 
edition,  1900.  Fourth,  revised  and  enlarged  edition,  Torino,  Unione  tip. 
ed.,  1909.  Fifth  enlarged,  ibid.,  1915.  French  translation  of  the  first 
edition  by  A.  Chretien  (Le  droit  international  codifi6,  Paris,  Chevalier, 
Marescq,  1889),  and  of  the  fourth  edition  by  Ch.  Antoine  (Le  droit  inter- 
national codifi6  et  sa  sanction  juridique,  Paris,  Pedone,  1911).  Spanish 
translation  by  Garcia  Moreno  (El  derecho  internacional  codificado, 
Madrid,  Gongora,  1891).  Revised  and  enlarged  edition,  translated  under 
the  direction  of  the  "Revista  general  de  legislacion  y  jurisprudencia" 
(third  ed.,  Madrid,  De  Reus,  1911);  English  translation,  from  the  fifth 
Italian  edition,  by  Edwin  M.  Borchard.  (Washington,  Carnegie  Endow- 
ment for  International  Peace,  1917.) 

Sulla  controversia  del  divorzio  in  Italia.    Torino,  Unione  tip.  ed.,  1891. 

Del  diritto  dello  straniero  di  adire  i  tribunali  italiani.  In  "Monitore  dei  tri- 
bunali" 1891,  p.  93. 

Sentenze  straniere  ed  atti.    In  "Digesto  italiano,"  vol.  XXI,  pt.  2. 

Dello  stato  e  della  condizione  giuridica  delle  persone  secondo  la  legge  civile. 
Napoh,  Marghieri,  1893.  In  "Diritto  civile  italiano  secondo  la  dottrina, 
etc."  Second  edition,  entitled  "Delia  cittadinanza;  del  matrimonio." 
Napoli,  Marghieri,  1909. 

Alleanza.    In  "Digesto  italiano,"  vol.  II,  parte  2. 

Controversia  fra  la  Grecia  e  la  Rumenia:  consultazione  pro  veritate.  Roma, 
tip.  nazionale,  1894. 


INTRODUCTION  Xlll 

Sulla  competenza  dei  tribunali  italiani  di  giudicare  e  decidere  controversie 
relative  alia  successione  di  uno  straniero  apertasi  aU'estero.  Napoli, 
Pirrotti,  1S94. 

II  riordinamente  degli  studi  superiori.    Napoli,  Schipani,  1894. 

Delia  personalita  giuridica  dei  corpi  morali  e  della  personality  giuridica  dello 
Stato  all'interno  e  all'estero.  In  "  Giurispridenza  italiana,"  1894,  IV  col. 
219.  Published  also  in  the  "Revue  g^nerale  de  droit  international 
public,"  vol.  1,  1894;  in  the  "Zeitschrift  fiir  internationales  Privat-  und 
Strafrecht,"  vol.  IV-V,  1894-95;  and  in  the  "Revista  general  de  legislacion 
y  jurisprudencia,"  1895. 

Lo  stato  e  i  diritti  deU'uomo.  In  "Diritto  pubblico"  anno  V°,  Palermo,  1894. 
German  translation,  Berlin,  Hoffman,  1895,  and  Spanish  in  "Revista 
general  de  legislacion  y  jurisprudencia,"  1896. 

Sugli  eflfetti  legali  della  condanna  penale  straniera  secondo  il  diritto  pubblico  e 
civile.  In  "Revista  penale,"  vol.  XLI,  1895,  p.  305.  German  translation 
in  "Zeitschrift  fiir  internationales  Privat-  u.  Strafrecht,"  vol.  VI,  1896, 
pp.  25,  141,  210. 

De  I'abordage  des  navii'es  suivant  le  droit  international.  In  "Revue  du  droit 
pubhc  et  de  la  science  politique,"  vol.  II,  Paris,  1895,  p.  293. 

I  condannati  per  complicitd  in  brigantaggio  e  nell'associazione  a  delinquere  e 
I'azione  di  risarcimento  dei  danneggiati  dai  singoli  reati.  In  "F6ro 
italiano,"  1896,  I,  col.  1117. 

Settlement  of  international  questions.  In  vol.  VIII,  1897,  of  the  "  International 
journal  of  ethics." 

La  compra-venta  en  cl  derecho  internacional.  In  "Revista  general  de  legis- 
lacion y  jurisprudencia,"  1898. 

El  contrabando  de  guerra.    Estudio  de  derecho  internacional.    Ibid.,  1898. 

Contrebande  de  guerre.    In  "Pandectes  frangaises,"  vol.  XXI. 

Della  legge  che  secondo  i  principii  del  diritto  internazionale  deve  regolare  le 
obbligazioni  che  nascono  senza  convenzione.  In  the  third  volume  of  hia 
"Studi  pel  50°  anno  d'insegnamento  di  E.  Pessina."  Xapoli,  tip.  A. 
Trani,  1899.  Pubhshed  also  in  the  "Revista  general  de  legislacion  y  juris- 
prudencia," 1900,  and  in  the  "Journal  du  droit  international  priv^,"  vol. 
XXVII,  1900. 

Dei  conflitti  fra  le  disposizioni  legislative  di  diritto  internazionale  privato 
(questione  del  rinvio).  In  "  Giurisprudenza  italiana,"  1900.  IV,  col. 
129  and  in  "Journal  du  droit  international  priv6,"  vol.  XXIX,  1902. 

SuU'art.  8  delle  disposizioni  generali  del  cod.  civ.  italiano.  In  "Giurisprudenza 
italiana,"  1901,  IV,  col.  193. 

Delia  capacitd  dello  Stato  straniero,  della  Chiesa  e  della  S.  Sede  si  acquistare 
per  successione.  In  "Revista  di  diritto  internazionale  e  di  legislazione 
comparata,"  vol.  IV,  Xapoli,  1901,  p.  96. 

Se  un  r.  agente  diplomatico  possa  esercitare  le  funzioni  di  ufficiale  di  stato 
civile  e  celebrare  il  matrimonio  fra  Itahani  nonostante  si  trovi  nello  stesso 
paese  I'ufficio  consolare  italiano.  Roma,  casa  ed.  italiana,  1902.  Pub- 
lished also  in  the  "Rivista  di  diritto  internazionale  e  di  legislazione  com- 
parata," vol.  IV,  p.  492,  and  in  "Foro  itahano,"  1902,  I,  col.  389. 

Legge  applicabile  alia  collazione  delle  donazioni  fatte  al  figlio  dal  padre  stra- 
niero divonuto  poi  cittadino  italiano  e  morto  in  tale  condizione.  In  "Foro 
italiano,"  1902,  I,  col.  558. 

Sul  questionario  proposto  dal  socio  prof.  Gianturco:  1.  Da  quali  caratteristichc 
deve  desumersi  se  una  persona  giuridica  sia  nazionale  o  straniera?    2. 


XIV  INTRODUCTION 

La  Chiesa  cattolica  puo  riguardarsi  come  una  persona  giuridica  universale? 

Paper  read  before  the  r.  Accademia  di  scienze  morali  e  politiche  di  Napoli 

(Atti,  vol.  XXXIV,  p.  350)  Napoli,  stab.  tip.  della  r.  University,  1902. 
De  la  succession  dcs  Strangers  en  Italic,  in  the  "Journal  du  droit  international 

priv6,"  vol.  XXX,  1903,  p.  42. 
Questioni  di  diritto  su  casi  controversi  esaminati  e  discussi.    Torino,  Unione 

tip.  ed.,  1904. 

1.  Sulla  legge  regolatrice  della  successione.  2.  Sulla  competenza  dei 
tribunali  italiani  rispetto  alia  successione  di  straniero  apertasi 
all'estero.  3.  Sulla  capacity  di  uno  Stato  straniero  di  acquistare  per 
successione  (successione  Zappa).  4.  Sulla  nazionalita  delle  persone 
giuridiche.  5.  Sulla  capacita  giuridica  della  Chiesa.  6.  Delia  legge 
che  deve  regolare  la  collazione  della  donazione  fatta  all'estero. 
7.  Sugli  effetti  legali  della  condenna  penale  straniera  secondo  il 
diritto  pubblico  e  civile.  8.  Sugli  effetti  della  perdita  di  cittadinanza 
del  padre  rispetto  al  figlio  minore  in  rapporto  all'obbligo  del  servizio 
militare.  9.  Della  condizione  dello  straniero  secondo  le  leggi  vigenti 
nel  regno  d'ltalia.  10.  Sulla  responsabilitd  dello  Stato  per  la  deten- 
zione  di  un  neutrale  come  prigioniero  di  guerra.  11.  Se  la  vedova 
abbai  diritto  di  portare  il  cognome  del  defunto  marito.  12.  Sul  valore 
giuridico  della  disposizione  testamentaria  fatta  da  uno  straniero  con 
I'espressa  dichiarazione  di  volersi  riferire  alle  leggi  italiano.  13.  Della 
responsabilita  civile  nascente  dal  reato.  14.  Della  responsabilitd 
civile  dello  Stato  pel  danno  sofferto  dai  privati.  15.  Sulla  validitd 
del  matrimonio  celebrato  dall'agente  diplomatico  italiano  in  un  paese 
straniero  ove  si  trovi  altrest  il  console  italiano.  16.  Sulla  competenza 
dei  tribunali  italiani  nelle  questioni  di  stato  fra  stranieri  e  sugli  effetti 
di  una  sentenza  straniera  di  divorzio.  17.  Successione  di  un  italiano 
apertasi  all'estero;  tribunale  competente  a  procedere  alia  divisione: 
beni  esistenti  a  Costantinopoli:  competenza  del  tribunale  consolare 
in  forza  dell'art.  94  cod.  proc.  civ.  18.  Finalita  del  giudizio  di 
delibazione  delle  sentenze  pronunziate  da  tribunali  stranieri:  quando 
tale  giudizio  sia  richiesto:  efRcacia  della  sentenza  straniera  che  abbia 
pronunziato  il  divorzio.  19.  Principi  di  diritto  internazionale  in  caso 
di  urto  di  navi.  20.  Dell'urto  di  due  navi  e  delle  conseguenze  giuri- 
diche del  naufragio.  21.  Della  giurisdizione  e  della  competenza  nei 
loro  rapporti  col  diritto  internazionale.  22.  Sulla  composizione  del 
consiglio  di  famiglia.  23.  Sul  pagamento  della  dote  e  sull'obbligo 
della  collazione.  24.  Del  legatario  universale  e  dell'esecutore  testa- 
mentario  secondo  la  legge  inglese  e  della  loro  responsibilita  verso  i 
creditori  (Jel  de  cuius.  25.  Sulla  nomina  del  curatore  al  minore  sotto 
patria  potestd.  26.  Sul  contratto  di  appalto.  27.  Sulla  proroga  della 
giurisdizione  ai  tribunali  stranieri  e  sulla  domanda  riconvenzionale. 
La  condizione  dello  straniero  secondo  le  leggi  civile  del  regno.     Paper  read 

before  the  royal  Accademia  delle  scienze  morali  e  politiche  di  Napoli 

(Atti,  volume  XXXIV,  p.  457),  Napoh,  stab.  tip.  della  r.  Universita,  1903. 
Sulla  responsabilitd  civile  dello  Stato  pel  danno  recato  ai  privati  in  forza  di 

un  atto  del  ministro  dell'interno.    Paper,  read  as  above  (Atti,  vol,  XXXV, 

pag.  365),  Napoli,  stab.  tip.  della  r.  Universita,  1905. 
Parere  giuridico  sulla  questione  della  frontiera  fra  il  Perfi  e  I'Equatore  deferita 

all'arbitrato  di  S.  M.  il  Re  di  Spagna.    Napoli,  A.  Trami,  1906. 
Del  protettorato  coloniale  e  della  sfera  d'influenza.    Paper,  read  as  above  (Atti, 


INTRODUCTION  XV 

vol.  XXXVII.pag.  l),Napoli,  atab.  tip.  dellar.Universiti,1906.  Published 
also  in  the  "Revue  g^n^rale  de  droit  international  pubUc,"  vol.  XIX,  1907, 
p.  149. 

Sulla  limitazione  deH'autoritd  delle  leggi  straniere:  determinazione  delle  leggi 
d'ordine  pubblico.  Paper,  read  as  above  (Atti,  vol.  XXXVIII,  pag.  47), 
Napoli,  stab.  tip.  della  r.  Universita,  1909. 

Sulla  libertd  di  disporre  con  testamento  e  suUa  riserva.  Paper,  read  as  above 
(Atti,  vol.  XXXVIII,  pag.  447),  Napoli,  stkb.  tip.  r.  Universita,  1909. 

Osservazioni  sulla  sentenza  arbitrale  pronunciata  dal  Presidente  della  Re- 
publica  Argentina  nella  vertenzo  per  regolamento  di  confini  fra  la  Bolivia 
e  11  Perii.  In  "Rivista  di  diritto  internazionale,"  vol.  IV,  1909,  p.  425  and 
in  the  "Revue  g^n^rale  de  droit  international  public,"  vol.  XVII,  1910, 
p.  225. 

Quando  il  mutamento  di  cittadinanza  possa  reputarsi  inefficace  perche  fatto 
in  frode  alia  legge.  Paper,  read  as  above  (Atti,  vol.  XIXXIX,  p.  187), 
Napoli,  stab.  tip.  della  r.  Universitd,  1910. 

I  nuovi  orizzonti  della  scienza  del  diritto  internazionale.  Conferenza  all'Acca- 
demia  di  legislazione  di  Madrid  il  20  aprile  1909.  Napoli,  Cimmaruta, 
1909.  Published  also  in  the  "Rivista  di  diritto  internazionale,"  vol.  Ill, 
p.  241,  and  in  the  "Revue  g6n§rale  de  droit  international  public,"  vol. 
XVI,  1909,  p.  4G3. 

De  I'ordre  public  en  droit  international  pnv6.  Report  to  the  Institut  de  droit 
international.  In  the  "Annuaire  de  I'Institut  de  droit  international," 
vol.  XXIII,  1910,  p.  205. 

Considerazioni  storiche  sul  diritto  di  guerra.  Paper,  read  before  the  r.  Acca- 
demia  di  scienze  morali  e  poUtiche  di  Napoli  (Atti,  vol.  XLI,  p.  99), 
Napoli,  stab.  tip.  della  r.  Universitd,  1912. 

Degli  aereonauti  nei  loro  rapporti  con  le  leggi  e  i  costumi  di  guerra.  Paper, 
read  as  above  (Atti,  vol.  XLII,  p.  66),  Najjoli,  stab.  tip.  della  r.  Uni- 
versitd, 1913. 

Sulla  condizione  giuridica  della  Tripolitania  e  della  Cirenaica  di  fronte  al  di- 
ritto costituzionale  e  al  diritto  internazionale.  Paper,  read  as  above 
(Atti,  vol.  XLII,  p.  119).    NapoU,  stab.  tip.  della  r.  Universitd,  1913. 

Dell'uso  delle  mine  sottomarine  nella  gueiTa  marittima  e  della  relativa  con- 
venzione  stipulata  all'Aja  dalla  Conferenza  del  1907.  Paper,  read  as 
above  (Atti,  vol.  XLII,  p,  155).  Napoli,  stab.  tip.  della  r.  Universitd, 
1913. 

L'istituto  di  diritto  internazionale  fondato  a  Gand  e  I'istituto  americano  di 
diritto  internazionale.  Paper,  read  as  above  (Atti,  vol.  XLII,  p.  184). 
Napoli,  stab.  tip.  della  r.  Universitd,  1913. 

Edwin  M.  Bouchard. 
Yale  University  School  of  Law, 
New  Haven,  Conn. 


TABLE  OF  CONTENTS 

PAGE 

Translator's  Introduction v 

Author's  Introduction 1 

CHAPTER 

I.  General  Survey  of  the  Organization  of  the  International 

Society 1 

II.  True  Purpose  of  the  Science  of  International  Law.  Interna- 
national  rights  of  the  State,  of  Man,  of  Collectivities,  and 
of  the  Church  and  of  Uncivilized  Peoples 29 

III.  Formulation  and  Legal  Enforcement  of  International  Law.  .     53 

IV.  The  American  Institute  of  International  Law — Jerome  In- 

ternoscia's  new  Code  of  International  Law 69 

V.  Purpose  of  the  present  Work — Sources  of  the  Legal  Rules 

formulated  therein — Division  of  the  Subject 78 


BOOK  ONE 
PERSONS  AND  ENTITIES  SUBJECT  TO  INTERNATIONAL  LAW 

TITLE 

I.  Persons  and  their  International  Right.s lOo 

II.  Persons  under  the  Authority  of  International  Law  and  their 

Rights 117 

III.  Political  Constitution  of  the  State  with  regard  to  Personal- 

ity   122 

IV.  Transformations  of  the  Personality  of  the  State 130 

*      V.  Ce.s.sion  of  Territory  and  resulting  .Annexations 137 

VI.  Recognition  of  the  State 14o 

VII.  Identity  and  Loss  of  Personality  of  the  State 151 

Vni.  Rights  of  Liberty  and  Autonomy 152 

IX.  Right  of  Independence 170 

X.  Right  of  Imperium 174 

XI.  Right  of  Jurisdiction 18S 

f    XII.  Exterritoriality 208 

XIII.  The  Legal  Equality  of  States 222 

XIV.  Representation  of  States 231 

XV.  Consuls  .                : 249 


XVII 


.will  CONTilNIB 

TITLE  PAGtJ 

XVI.  Of  the  Protection  of  Citizens  Abroad 259 

XVII.  Internationjil  Duties  of  the  State 264 

XVIII.   Duties  of  Non-intervention 265 

XIX.  Duties  of  Collective  Intervention 268 

XX.  Duty  of  Mutual  Assistance^ 273 

XXI.  International  Responsibility  of  the  State 282 

XXII.  Duties  of  Humanity 289 

XXIII.  International  Rii?hts  and  Duties  of  Man 291 

XXIV^".  International  Rights  and  Duties  of  the  Church 312 

BOOK  TWO 

INTERNATIONAL  OBLIGATIONS 

I.  General  and  Fundamental  Rules 325 

II.  Treaties  and  the  Conditions  for  their  Validity 328 

III.  Legal  Force  and  Execution  of  Treaties 336 

IV.  Abrogation  and  Annulment  of  Treaties 348 

V.  Special  Treaties 355 

BOOK  THREE 

PROPERTY  AND  ITS  RELATIONS  WITH 
INTERNATIONAL  LAW 

I.  Of  Conunoii  Property 385 

II.  Public  Property  in  its  Relations  with  International  Law.  .  .    415 

III.  Methods  of  Acquiring  Territory 422 

IV.  Property  of  the  State  and  Taxation 436 

V.  Property  belonging  to  Private  Individuals 448 

BOOK  FOUR 

THE  ENUNCIATION  OF  INTERNATIONAL  LAW 
AND  ITS  ENFORCEMENT 

I.  The  Congress 467 

II.  The  Conference 478 

III.  Of  the  Effective  Means  of  Settling  Differences  between 

States  and  of  Preventing  Litigation 484 

IV.  Of  International  Arbitration 494 

V.  Coercive  Means  in  Time  of  Peace 519 


TITLE  PAGE 

VI.  The  last  Recourse  for  Juridical  Protection — War 532 

VII.  Exercise  of  the  Rights  of  War 548 

VIII.  Hostile  Acts  in  War  on  Land 554 

IX.  Military  Operations  during  War  on  Land 564 

X.  Prisoners  of  War.    The  Wounded  and  Sick 579 

XI.  Rights  of  the  Belligerents  over  Enemy  Property .590 

XII.  Belligerents  m  Naval  War 594 

XIII.  Acts  of  Hostility  in  Maritime  War 602 

XIV,  Rights  of  a  Belligerent  with  respect  to  Enemy  Persons 613 

XV.  The  Capture  of  Enemj'  Merchant  Ships  and  Cargo 621 

XVI.  Conventions  Governing  War 632 

XVII.  Rights  of  Belligerents  towards  Neutrals 643 

XVIII.  Neutrality  and  the  Rights  and  Duties  Arising  therefrom .  .  .  645 

WAR  ON  LAND  (CONVENTION  V) 

CHAPTER 

I.  Rights  and  Duties  of  Neutrals  Powers 658 

II.  Belligerents  Interned  and  Wounded  tended  in  Neutral 

Territory 659 

III.  Neutral  Persons 660 

IV.  Railway  Material 660 

XIX.  Of  Blockade  and  its  Effects  with  respect  to  Neutrals 667 

XX.  Contraband  of  War 673 

XXI.  Of  the  Right  of  \'isit    684 

XXII.  Of  the  Right  of  Capture  in  Time  of  Naval  War 689 

XXIII.  The  End  of  War 715 

CONCLUSION 

Of  the  second  and  third  Italian  Editions 725 


INTERNATIONAL  LAW  CODIFIED 
AND  ITS  LEGAL  SANCTION 

CHAPTER  I 

AUTHORS  INTRODUCTION 

GENERAL  SURVEY  OF  THE  ORGANIZATION  OF  THE 
INTERNATIONAL  SOCIETY 

1.  Historical  view  of  the  conception  of  a  community  of  law  among  the  dif- 
ferent nations.  2.  Present  condition  of  the  society  of  states.  3.  Need 
of  providing  it  with  a  more  rational  form  of  organization  and  of  creating 
a  sanction  for  the  law  which  ought  to  govern  it.  4.  Imperfection  of  the 
different  projects  conceived.  5.  Proposal  of  arbitration  as  a  means  of 
ending  armed  peace.  6.  Insufficiency  of  the  proposal:  Note  of  the  Czar 
of  August  12/24,  1898.  7.  The  First  Peace  Conference  of  July  29,  1899. 
8.  The  Second  Conference  assembled  on  the  invitation  of  the  Emperor 
of  Russia  on  July  15,  1907.  9.  Solution  of  the  problem  of  providing  the 
society  of  nations  with  a  legal  organization. 

1.  The  great  problem  of  the  present  day  requiring  early  solu- 
tion is  to  provide  for  a  more  rational  organization  of  international 
society.  Indeed,  the  present  condition  of  that  society  is  obviously 
imperfect.  Notwithstanding  their  arduous  labors,  publicists  have 
failed  to  agree  upon  the  principles  by  which  international  society 
should  be  governed.  Governments  have,  it  is  true,  admitted 
certain  rules  which  have  been  given  the  authorit}'  of  "common" 
law;  but  those  of  such  rules  which  have  a  sound  basis  constitute 
only  a  minor  part  of  the  domain  of  international  law. 

The  greatest  difficulty  in  this  respect  consists  in  insuring  recogni- 
tion for  established  rules.  In  civil  society,  social  activity,  liberty 
and  actions  are  not  only  prescribed  and  regulated  by  laws  and 
codes,  but  courts  and  well  established  legal  methods  of  coercion 
exist  to  prevent  and  punish  the  violation  of  law. 

In  international  .society,  on  the  contrary,  no  superior  authority 
is  invested  with  the  power  of  preventing  this  or  that  state  from 
abusing  its  power  to  violate  the  right  of  others,  nor  is  there  any 

1 


2  INTERNATIONAL  LAW  CODIFIED 

legal  institution  generally  recognized  to  settle  the  difficulties  aris- 
ing out  of  the  abuses  of  liberty.  Every  state  must  insure  the  de- 
fense of  its  rights,  and  when  wronged,  has  no  other  means  of 
redress  than  recourse  to  reprisals,  and  as  a  last  resort,  the  employ- 
ment of  armed  force. 

Now,  considering  these  obvious  imperfections  of  international 
law,  might  we  not  consider  as  valueless  the  intellectual  and  poUtical 
movement  of  our  time  aiming  at  the  organization  of  international 
society? 

Why  is  it  that,  notwithstanding  the  time  elapsed,  and  long  and 
serious  effort,  the  problem  is  still  so  far  from  solution?  What 
has  been  done  up  to  this  time  to  insure  its  solution?  And  is  this 
solution  now  near  at  hand?  What  may  we  hope  of  the  present? 
What  must  be  done  to  attain  the  end  desired  in  the  future? 

All  these  questions  are  extremely  complex.  To  examine  the 
matter  thoroughly,  it  would  be  necessary  to  study  the  past  as  well 
as  the  present;  to  consult  both  public  history  and  the  secret  his- 
tory of  diplomacy;  to  inquire  into  the  hidden  motives  of  many 
events;  to  set  forth  the  causes  which,  both  in  the  past  and  in  the 
present,  have  constituted  an  obstacle  to  the  establishment — if 
not  among  all  the  states,  at  least  among  all  the  civilized  countries — 
of  a  real  community  of  law,  so  as  to  endow  the  international  so- 
ciety with  a  genuine  legal  organization. 

To  study  the  question  thoroughly  would  require  the  writing  of 
several  volumes;  but  it  is  our  intention  to  confine  ourselves  to  a 
rapid  survey,  presenting  only  a  general  and  summary  idea  of  the 
subject. 

In  the  first  place,  let  us  remember  that  if  so  little  progress  has 
been  made  towards  the  solution  of  the  problem,  it  is  because  the 
problem  has  but  recently  been  presented.  Furthermore,  a  legal 
community  among  the  states  was  an  idle  dream  so  long  as  the  true 
idea  of  such  a  community  had  not  been  conceived.  To  this,  there 
were  many  obstacles.  First,  there  was  the  obstructing  tendency 
of  each  nation  to  live  apart  and  to  foster  sentiments  of  distrust 
against  foreigners,  whence  originated  the  erroneous  idea  of  re- 
stricting the  community  to  the  people  belonging  to  one  nation 
only.    Such  was  the  case  in  Greece.^ 

'  Pastoret,  Hisloire  de  la  legislation,  v.  V,  5  and  372-73;  Montesquieu, 
Esprit,  fks  lois,  xxi,  7;  Herodotus,  lib.  vii,  §  133. 


ORGANIZATION    OF    THE    INTERNATIONAL    SOCIETY  3 

The  cominuiiity  of  language,  of  artistic  and  scientific  genius,  of 
religion  and  of  customs  among  the  different  Greek  cities  led  to  the 
formation  of  a  bond  amongst  them,  but  not  between  them  and 
foreigners.  The  Greeks  considered  as  barbarians  the  nations  which 
did  not  belong  to  Greece.  The  philosophers  favored  these  exclu- 
sive tendencies.  Plato,  indeed,  considered  the  human  race  as 
divided  into  Greeks  and  barbarians;  and  Aristotle  proclaimed 
that  all  other  nations  were  barbarians  predestined  by  nature  to 
be  subjected  to  the  Greeks. 

Another  obstacle  was  the  professed  superiority  of  certain  races, 
a  superiority  founded  on  religious  beliefs.  Such  was  the  case  with 
the  theocratic  states,  which  considered  as  beyond  the  pale  of 
"common"  law  all  the  peoples  who  did  not  share  their  beliefs. 
The  immoderate  passion  for  conquest  also  constituted  an  ob- 
stacle. Thus,  the  policy  of  the  Romans  in  their  relations  with 
other  nations  was  inspired  by  a  boundless  desire  to  subdue  them 
and  to  bring  to  fruition  the  proud  project  of  making  of  all  countries 
colonies  of  the  Empire.^ 

Christ,  by  proclaiming  the  unity  of  mankind  and  the  fraternity 
of  all  peoples,  gave  the  true  conception  of  humanity:  "There  are 
neither  Hebrews,  nor  Greeks,  nor  slaves,  nor  free  men,  since  you 
are  all  brothers  in  Jesus-Christ."  -  This  conception  is  broader 
and  more  complete  than  those  advocated  by  all  the  philosophies. 
Tertulian  said  in  effect  that  the  world  should  form  one  single 
republic:  "I  know,"  said  he,  "but  one  republic — the  world."  ^ 
This  doctrine  would  certainly  have  inaugurated  the  idea  of  com- 
munity amongst  all  the  peoples  of  the  universe;  but  a  new  ob- 
stacle contributed  to  retard  that  splendid  end. 

The  most  serious  mistake  of  the  Papacy  was  to  assume  that  it 
was  the  sole  and  exclusive  repository  of  truth,  and  that  every  one, 
voluntarily  or  by  force,  had  to  be  brought  to  the  faith. 

To  Saint  Thomas,   who  asked  of  Him  how  to  find  his  way, 

'  Ortolan,  Hisloire  de  la  legislation  romaine  (Politique  exterieure  de  Rome); 
Laurent,  Hisloire  du  droit  des  gens,  v.  3;  Osenbrueggen,  De  jure  belli  el  pacis 
RotnancB. 

^  Non  est  Judaeus  neque  Grcecus;  non  est  servus  nee  liber;  non  est  masculus 
neque  fcemina.  Omnes  enim  vos  unum  estis  in  Christo  Jesu  (Epist.  Paidi  ad 
(Jalatos,  3-28).  See  also  In  Romanns,  III,  28-29;  Coloss.,  Ill,  II.  Compare 
Laurent,  Hist.,  v.  4. 

'  Unum  omnium  rempublicam  agnoscimus,  mundwii,.    Apolog.  39. 


4  INTERNATIONAL   LAW   CODIFIED 

Jesus-Christ  answered:  "I  am  the  truth  and  the  hfe;  no  one  can 
go  to  the  Father  except  through  Me." 

As  vicar  of  Christ,  the  Pope  beheved  that  he  alone  was  in  posses- 
sion of  the  truth  and  proclaimed  that  all  those  who  did  not  follow 
his  doctrine  were  lost.  This  resulted  in  intolerance  and  persecution 
to  suppress  heresy,  and  in  the  mistaken  idea  that  it  was  an  act  of 
charity  to  combat  the  adversaries  of  the  doctrine  of  the  Papacy.^ 

So  it  happened  that  a  new  form  of  dualism  was  created  between 
the  orthodox  Christians  and  the  heretics.  Just  as  the  Greeks  con- 
sidered foreigners  as  barbarians  outside  the  "common"  law,  so 
the  Papacy  considered  as  excluded  from  that  law  the  peoples  who 
did  not  follow  its  doctrine. 

The  Catholic  Princes  were  urged  by  the  Pope  to  resort  to  arms 
for  the  defense  of  the  faith,  and  the  most  cruel  wars  against  heretics 
and  infidels  were  undertaken  in  the  name  of  the  religion  of  Christ, 
a  religion  of  peace  and  love.^ 

This  was  the  sanguinary  period  of  the  religious  wars.  The  hor- 
rible war  of  the  Albigenses,  the  Crusades,  the  relentless  struggles 
against  the  Protestants  were  directly  due  to  the  doctrine  of  the 
Papacy. 

A  reaction,  however,  was  not  long  in  coming.  A  struggle  began 
for  the  separation  of  the  public  law  of  the  State  from  the  public 
law  of  the  Church,  for  the  vindication  of  the  essential  attribute  of 
human  personality,  the  right  to  freedom  of  conscience,  and  for  the 
freedom  and  equality  of  the  three  churches,  Catholic,  Lutheran 
and  Calvinist. 

The  Reformation  finally  triumphed  and  the  victories  it  had 
gained  were  recognized  in  the  treaty  of  Westphalia,  which  conse- 
crated a  principle  of  community  among  peoples  professing  different 
religious  beliefs.^ 

1  Saint  Augustine,  Epist.  185,  De  correctione  Donatistorum,  n°  13;  he  expresses 
himself  as  follows  in  Chapter  XXIII:  ^n  non  perlinet  ad  diligenliam  pastoralem, 
eliam  illas  ones,  quce  non  violenler  eruptoe  sed  blande  lenilerque  seduclcc,  a  grege 
aberraverint,  et  ab  alienis  cooperint  possideri  inventas  ad  ovile  dominictiryi,  si 
resistere  voluerint,  flagellorum  terroribus,  vel  eliam  doloribus  revocare?  Sic  enivi 
error  corrigendus  est  ovis,  ut  non  in  ea  corrumpatur  signaculum  Redemptoris. 
Compare  Saint  Bernard,  In  canlica,  sermo  66,  n°  12;  Baronius,  Ann.,  anno  385, 
V.  IV;  Barbeyrae,  Traite  de  la  morale  des  Pires;  Saint  John  Chrisostome, 
Homelia  in  Psalm.  43,  Alierdfilii  qui  sunt,  B. 

^  See  Robertson,  History  of  America. 

'  See  on  the  influence  of  Richelieu,  Monteil,  Histoire  des  Frangais,  v.  VII, 


ORGANIZATION   OF  THE   INTERNATIONAL   SOCIETY  5 

Nevertheless,  the  struggle  assumed  a  new  form  by  reason  of  the 
erroneous  conception  of  the  basis  of  the  true  community  and  of 
rational  principles  designed  to  protect  it. 

We  shall  not  enter  into  the  details  of  this  question,  as  it  would 
be  necessary  for  us  to  follow  the  winding  road  which  nations  have 
had  to  travel  under  the  pressure  of  circumstances  and  of  false 
notions  concerning  the  foundation  of  political  greatness  and  eco- 
nomic prosperit.y.  We  would  have  to  bring  to  light  the  secret 
history  of  politics  and  diplomacy  of  the  different  countries  and 
expose  the  errors  of  the  system  known  as  "Colbertism,"  a  system 
which  perverted  the  mission  of  the  State,  the  basis  of  commercial 
relations  and  the  bond  of  relationship  between  the  different  coun- 
tries of  the  world. 

It  was  believed  that,  in  order  to  preserve  the  independence  of 
states,  it  was  indispensable  to  prevent  the  renewal  of  the  danger 
of  universal  monarchy,  and  consequently  to  maintain  among  the 
states  a  certain  balance  of  power  to  render  impossible  the  pre- 
ponderance of  any  one  of  them. 

Frederick  the  Great,  assuming  the  role  of  interpreter  of  the 
general  convictions  of  his  time,  wrote  in  his  Anti-Machiavelli 
that  the  peace  of  Europe  was  based  largely  upon  the  maintenance 
of  that  well  conceived  equilibrium  by  which  the  superior  strength 
of  one  monarchy  was  counterbalanced  by  the  combined  power  of 
several  other  sovereigns.^ 

How  many  events  have  there  been,  how  many  conflicts,  how 
man}'  alliances  contracted  and  broken,  how  many  treaties  signed 
and  violated,  whose  purpose  was  to  prevent  the  preponderance  of 
this  or  that  country,  always  designed  to  assure  the  European 
equilibrium  and  the  well  known  balance  of  power! 

When  France,  at  the  time  of  Henry  IV,  and  in  greater  degree 
during  the  reign  of  Louis  XIV,  became  powerful  and  feared,  the 
other  states  allied  themselves  against  her  in  order  to  weaken  her. 
France,  which  had  dictated  the  conditions  of  peace  in  the  treaty 
of  Nimegue  of  1678  and  in  the  treaty  of  Ryswick  of  1697,  had  to 
submit  in  1713  to  the  conditions  which  the  allied  Powers  imposed 
on  her  and  sign  the  treaty  of  Utrecht,  by  which  she  renounced  her 

p.  114;  Champion,  Meinoires;  Memoires  du  Cardinal  de  Retz;  Lc-Vassor,  His- 
toire  de  Louis  XIII,  v.  X;  Caussin,  Mhnoires  de  Richelieu. 
^  Anti-M achiavelli,  Part  '•*>,  chap.  XXVI,  p.  58. 


6  INTERNATIONAL   LAW    CODIFIED 

projects  of  aggrandizement.  Other  wars  were  also  undertaken  to 
maintain  the  equilibrium,  notably  the  Polish  war,  terminated  by 
the  treaty  of  Vienna  of  1738  and  the  war  of  the  Austrian  succes- 
sion, terminated  by  the  treaty  of  Aix-la-Chapelle  of  1748.  There 
was  also  the  Seven  Years'  War  which  resulted  in  the  treaty  of 
Paris  of  1763.  It  would  take  too  long  to  enumerate  all  the  san- 
guinary struggles  inspired  by  the  fear  of  preponderance  or  he- 
gemony. 

Since  the  discovery  of  America  and  of  the  maritime  route  to 
the  Indies,  the  struggle  assumed  a  new  form.  Every  state  sought 
to  acquire  commercial  supremacy  and  conceived  that,  to  that 
end,  it  was  necessary  to  acquire  for  its  own  advantage  the  mo- 
nopoly of  exchanges  and  exports  and  to  create  every  form  of  ob- 
stacle to  the  freedom  of  commerce  of  the  other  states  and  to  the 
development  of  their  resources. 

Such  was  the  origin  of  wars  undertaken  to  maintain  what  was 
called  the  balance  of  trade.  The  results  of  this  false  system  desig- 
nated by  the  name  of  "Colbertism,"  have  not  been  less  serious 
than  those  of  the  system  of  political  equilibrium.  Pretexts  for 
making  war  were  constantly  sought  for  the  purpose  of  compelling 
the  rival  powers  to  sign  a  treaty  of  commerce  to  the  advantage 
of  the  conquering  state. ^ 

The  treaties  concluded  in  the  17th  and  18th  centuries  as  a  con- 
sequence of  commercial  wars  demonstrated  clearly  the  confusion 
existing  as  to  the  liberty  of  commerce  and  navigation. 

This  confusion  as  to  the  rights  of  neutral  states  during  war  began 
to  be  dissipated  only  as  a  consequence  of  the  leagues  of  armed 
neutrality  of  1780  and  1800.  Nevertheless,  the  states  which  had 
recognized  the  rules  applicable  to  neutral  powers  disregarded  or 
modified  them  arbitrarily,  inasmuch  as  there  was  no  other  means 
to  insure  their  respect  than  the  force  of  arms. 

Could  the  idea  of  a  community  be  conceived,  while  false  notions 
prevailed  as  regards  the  prosperity  of  nations,  and  while  it  was 
every  government's  aim  so  to  organize  its  commercial  relations 
as  to  import  the  most  gold  and  the  least  merchandise  in  order  to 
insure  the  so-called  balance  of  trade? 

^  Campbell,  lAves  of  the  Chancellors,  v.  V,  p.  89.  See  also  the  Speech  of  the 
Earl  of  Shaftesbury,  Lord  Chancellor,  when  he  endeavored  to  prove  that  it 
was  time  to  make  war  on  Holland  (Parliament,  Hist.,  v.  IV,  p.  587). 


ORGANIZATION    OF   THE    INTERNATIONAL   SOCIETY  7 

Thus,  wc  reach  the  f>eriod  of  the  French  Revolution  amidst  the 
greatest  confusion  of  ideas  and  false  notions  as  to  the  particular 
interests  of  each  nation,  the  general  interests  of  states  and  the 
just  principles  calculated  to  insure  the  independence  of  each 
country. 

The  abnormal  conditions  under  which  the  wars  of  the  French 
Revolution  were  undertaken  served  to  justify  the  violence  and 
abuses  which  were  committed  by  both  parties.  The  fact  is  that 
the  most  arbitrary  actions  were  justified  under  color  of  reprisals, 
and  that  all  the  principles  of  international  law  were  disregarded. 
The  condition  of  neutral  states  grew  worse.  The  rights  of  neutrals 
which  had  been  solemnly  proclaimed  by  various  powers  were 
grossly  violated. 

At  the  time  of  the  fall  of  Bonaparte,  Europe  presented  a  new 
aspect;  while  certain  states  had  disappeared,  others  had  sprung 
up.  The  authority  of  the  treaty  of  Westphalia  had  been  ignored, 
the  equilibrium  had  been  upset.  The  question  was  to  provide 
for  the  final  organization  of  Europe,  to  give  a  solid  foundation  to 
the  vital  principle  of  the  community  of  interests  and  to  establish 
properly  the  just  principle  of  equilibrium. 

The  experience  of  the  past  should  have  convinced  the  powerful 
Allies  that  if  a  certain  form  of  balance  was  necessary  to  assure  the 
orderly  coexistence  of  states  and  to  preserve  their  independence 
and  rights,  it  was  indispensable  to  give  other  bases  to  this  equilib- 
rium. Nevertheless,  the  Powers,  in  the  excitement  of  victory, 
thought  only  of  insuring  the  so-called  rights  of  legitimate  sover- 
eigns and  dynasties,  taking  historical  right  as  the  basis  of  legiti- 
macy. It  was  thought  that,  in  order  to  restore  the  equilibrium, 
territorial  possessions  should  be  restored  to  the  condition  prevail- 
ing before  the  French  Revolution.  In  order  to  make  this  work 
lasting,  the  Great  Powers,  acting  as  dictators,  decided  reciprocally 
to  guarantee  to  one  another  the  possessions  which  they  had  claimed 
for  themselves  by  virtue  of  their  alleged  legitimate  rights,  by  en- 
gaging to  intervene  and  to  resort  to  force  to  repress  any  attack 
whatever  upon  the  balance  they  had  established.  Their  artificial 
labors  were  summed  up  in  the  Final  Act  signed  at  Vienna  on 
June  9,  1815,  and  completed  by  the  treaty  of  the  Holy  Alliance. 

And  so  we  arrive  at  the  beginning  of  the  19th  century  and  find 
that  the  true  idea  of  the  international  community  was  still  unborn. 


B 


INTERNATIONAL   LAW    CODIFIED 


It  was  believed,  as  a  matter  of  fact,  that  the  supreme  interest 
of  international  society  lay  in  the  protection  of  the  so-called  rights 
of  legitimate  sovereigns  and  dynasties,  and  that  historical  right 
was  the  basis  of  legitiraac3^  It  was  thought  that  the  power  of 
legitimate  monarchs  was  absolute;  that  the  people  had  no  rights 
whatever;  that  their  interest  was  in  a  way  represented  by  the  in- 
terest of  the  Prince;  that  legitimate  monarchies  could  annex 
territories  on  the  basis  of  historical  right,  without  taking  into 
account  either  the  interests  of  the  people  or  the  moral  position  of 
the  different  countries. 

As  a  natural  consequence,  the  problem  of  international  organiza- 
tion had  not  been  presented  in  its  proper  light.  Indeed,  how  could 
an  organization,  whose  main  purpose  was  the  preservation  of  the 
so-called  rights  of  legitimate  sovereigns  and  dynasties,  constitute 
the  principle  of  a  rational  institution? 

Conflict  was  to  be  the  consequence  of  this  system,  and  of  the 
palpable  violation  of  the  liberty  and  sacrifice  of  the  rights  of 
peoples. 

Relying  on  their  reciprocal  agreements  under  the  celebrated 
treaty  of  the  Holy  Alliance,  governments  endeavored  to  suppress 
what  they  called  revolutionary  ideas;  they  organized  the  system 
of  armed  intervention  to  wage  war  against  liberty  and  the  rights 
of  nationalities;  but  all  their  armies  put  together  were  not  strong 
enough  to  preserve  the  political  balance  established  at  Vienna 
under  Metternich's  inspiration. 

The  first  great  success  of  the  new  theory,  which  proclaimed  the 
inalienable  rights  of  nationalities  as  opposed  to  the  pretended 
rights  of  legitimate  monarchies  was  obtained  in  Greece. 

The  relentless  struggle  of  the  country  for  the  recognition  of  its 
independence  against  Turkish  rule  began  in  1821  and  continued 
until  1829.  In  that  year,  the  Sultan  was  compelled  to  sign  the 
treaty  of  Adrianople,  by  the  terms  of  which  the  Greek  provinces 
were  constituted  as  an  independent  state  at  whose  head  was  placed 
Prince  Otto  of  Bavaria  with  the  title  of  King. 

In  the  same  way,  in  the  Belgian  provinces  which  formed  a  part 
of  the  Kingdom  of  the  Netherlands,  the  revolution  was  inspired 
by  the  noble  idea  of  defense  of  national  interests.  It  resulted  in 
the  separation  from  Holland  of  Belgium,  which  became  an  inde- 
pendent Kingdom.    This  independence,  consecrated  by  the  treaty 


ORGANIZATION    OF   THE    INTERNATIONAL   SOCIETY  9 

of  London  of  November  15,  1831,  was  recognized  by  the  King  of 
the  Netherlands  himself  by  another  treaty  of  London  of  April  19, 
1839.  '  I 

Egypt  had  also  revolted  to  win  its  independence,  under  the 
leadership  of  Mehemet-Ali,  and  fought  against  Turkey  until  the 
treaty  of  London  of  1840  recognized  the  hereditary  right  of 
Mehemet-Ali  as  sovereign  of  Egypt,  under  the  suzerainty  of  the 
Porte. 

Furthermore,  divers  political  movements  broke  out  in  1848  and 
1849  which  deeply  disturbed  France,  Germany,  Hungary  and 
Italy.  Their  final  result  was  gradually  to  reduce  to  naught  the 
hare-brained  dream  of  Metternich,  namely,  the  political  balance 
of  1815,  and  to  effect  a  radical  change  in  the  basis  of  legitimacy. 
For  the  sovereignty  of  divine  right  was  substituted  the  free  suf- 
frage of  the  people. 

The  essentially  democratic  movement  to  which  the  Revolution 
of  1848  owes  its  origin  was  inspired  by  an  absolute  reaction  against 
the  spirit  of  the  Holy  Alliance.  The  greater  representation  of  the 
interests  of  the  people,  the  control  exercised  by  public  opinion 
upon  both  the  internal  and  foreign  policies  of  the  majority  of 
states,  the  extraordinary  development  of  commercial  relations  and 
means  of  communication  between  the  different  countries,  every- 
thing, so  to  speak,  contributed  to  do  away  with  unreasonable 
prejudices,  to  develop  the  sentiment  of  solidarity  of  interests  and 
to  bring  forward  the  true  principle  of  a  community  of  interests. 

Indeed,  it  began  gradually  to  be  understood  that,  in  order  to 
assure  the  development  of  national  prosperity  in  each  country, 
it  was  indispensable  to  facilitate  the  development  of  international 
relations  and  to  guarantee  and  protect  common  interests. 

2.  This  fundamental  conception  was  better  understood  during 
the  second  half  of  the  19th  century.  It  owed  its  success  to  two 
important  factors.  One  was  the  development  of  international 
trade,  which  became  a  powerful  agent  of  civilization  by  establishing 
permanent  bonds  among  the  different  nations.  The  other  factor, 
even  more  important,  was  the  scientific  movement,  which  con- 
tributed in  the  most  direct  manner  to  the  overthrow  of  the  past 
and  to  reconstruction  upon  its  ruins. 

It  would  bo  a  long  task  to  enumerate,  even  in  a  summary  manner, 
the  great  builders  who  helped  to  tear  down  the  old  political  struc- 


10  INTERNATIONAL   LAW    CODIFIED 

ture  and  to  construct  the  monument  of  modern  civilization,  based 
on  the  great  fundamental  idea  of  humanity.  We  shall  mention 
only  a  few  of  them. 

To  the  Italian  Albericus  Gentihs,  among  the  publicists,  is  due 
the  merit  of  having  emancipated  the  science  of  international  law 
from  the  authority  of  theology  by  giving  it  a  rational  basis.  He 
was  the  first  to  teach  that  the  rules  of  justice  ought  to  be  deduced 
from  natural  reason. 

He  had  as  his  successor,  Hugo  Grotius,  who  perfected  his  work. 
These  two  learned  writers  gave  the  first  serious  impulse  to  intel- 
lectual activity  in  its  work  of  total  destruction  of  the  past  and  of 
reconstruction  upon  its  ruins.  Among  those  who  contributed 
to  that  work,  special  mention  must  be  made  of  Hobbes,^  Pufen- 
dorf,^  Leibnitz,^  and  Wolff.^  Then  followed  the  long  line  of  pub- 
licists who  sought  to  elucidate  and  expound  the  rules  for  the  gov- 
ernment of  states  and  the  true  bases  of  international  relations. 

Among  those  who  gave  the  first  impulse  to  political  science,  we 
may,  with  justifiable  pride,  mention  our  countryman  Machiavelli, 
one  of  the  first  to  apply  to  politics  the  historical  and  empirical 
method.  His  great  merit  lies  in  having  thoroughly  studied  the 
causes  upon  which  depend  the  establishment,  conservation,  pros- 
perity and  decadence  of  states,  and  in  having  left  the  most  com- 
plete series  of  profound  observations  upon  the  relations  existing 
between  facts  and  the  causes  from  which  they  are  derived.  He 
applied  the  force  of  his  original  genius  to  separate  the  domain  of  the 
State  from  the  domain  of  the  Roman  Church  and  to  regard  the 
problem  of  the  art  of  governing  nations  as  altogether  independent 
of  the  authority  of  theology.  This  method  resulted  in  releasing 
governments  from  the  all-powerful  authority  of  the  Church. 

The  detractors  of  this  great  Italian  thinker  have  claimed  that 

he  did  not  take  sufficient  notice  of  the  laws  of  justice,  that  he 

considered  the  art  of  governing  from  the  point  of  view  of  success 

rather  than  of  law  and  that  he  considered  interest  as  the  basis  of 

politics.     But,  apart  from  the  defects  of  his  method,  there  is  no 

doubt   that   Machiavelli   has   rendered   the  greatest   service   to 

'  De  cive,  Parisiis,  1646. 

2  De  jure  naturce  et  gentium;  De  officiis  hominis  et  civis;  specimen  contro- 
versiarum  citra  jus  naturale. 

^  Codex  juris  gentium  diplomaticus. 

*  Jus  naturce  methodo  scientifica  per  tractatum. 


ORGANIZATION   OF   THE    INTERNATIONAL    SOCIETY  11 

civilization  by  dissipating  the  false  notion  that  the  State  should 
be  considered  as  subject  to  the  Church  and  that  the  Pope  could 
assume  the  right  to  command  sovereigns  of  States.  The  prepon- 
derance of  the  Papacy  and  the  subjection  of  the  State  to  the  pro- 
tection of  the  Church  were  reduced  to  naught  owing  to  Machia- 
velli's  important  concept,  which  was  to  remove  politics  from  the 
Church's  authority  and  to  give  to  governments  and  politics  a  new 
basis  and  a  proper  purpose. 

The  publicists  who  came  after  Machiavelli,  adopting  his  method, 
improved  the  principles  which  he  had  laid  down  and  succeeded 
in  re-establishing  the  theory  of  government  on  its  true  foundations. 
Among  these,  we  shall  mention  only  Locke  in  England  and  Mon- 
tesquieu in  France. 

Locke, ^  in  his  Two  treatises  on  government  has  left  us  the  most 
liberal  theory  of  constitutional  monarchies  and  of  the  legitimacy 
of  powers.  His  work  was  perfected  and  completed  by  Montes- 
quieu, who  defended  the  rights  of  mankind,  and  elucidated  and 
developed  the  proper  principles  of  the  greatness  of  states.  The 
science  of  politics  as  independent  of  the  authority  of  the  Church 
gradually  entered  the  domain  of  intellectual  activity;  it  would- 
take  too  long  to  mention  the  authors  who  have  taken  part  in  the 
great  work  of  destruction  and  reconstruction,  the  purpose  of  which 
was  to  determine  the  true  principle  of  political  wisdom. 

Among  the  economists  who  contributed  most  to  demonstrate 
the  fatal  error  of  the  mercantile  system,  we  shall  name  Hume, 
Quesnay  and  Turgot,  who  foresaw  the  great  truth  that  liberty  is 
the  principal  condition  of  commercial  prosperity.^  The  true  doc- 
trine of  free  trade,  which  brought  about  the  great  revolution 
which  has  taken  place  in  economic  life  and  even  in  the  political 
existence  of  states,  subsequently  was  clothed  in  its  most  perfect 
scientific  form  b}'-  Adam  Smith.  His  work  on  the  Wealth  of  Nations 
absolutely  discredited  the  false  theory  of  protection. 

Among  the  philosophers,  we  might  mention  our  countrymen 
Pomponaccio,  Giordano  Bruno  and  Telesio,  who  helped  to  eman- 
cipate thought  from  the  authority  of  theology.  But  the  most 
decisive  revolution  in  behalf  of  the  preponderance  of  reason  must 

1  His  work,  Two  treatises  on  goverfiment,  published  in  1690,  was  later  trana- 
latcd  into  French  under  the  tith'  of  Essai  dn  gouvemernent  civil. 
^  Cf .  Huekh;,  History  of  Civilization. 


12  INTERNATIONAL   LAW    CODIFIED 

certainly  be  traced  to  Descartes.  He  did  for  philosophy  what 
Luther  had  begun  to  do  for  religion;  what  Machiavelli  had  done 
in  theory  and  what  Richelieu  and  Cromwell  had  done  in  practice 
for  politics;  and  what  Galileo  had  accomplished  in  the  domain  of 
the  physical  sciences.  Descartes,  disregarding  tradition  and 
authority,  and  relying  on  the  force  of  intelligence,  began  the  vast 
work  of  destruction  of  the  past.  It  cannot  be  said  of  him,  perhaps, 
that  he  was  a  creative  genius,  as  he  destroyed  more  than  he  re- 
built; but  without  him  we  would  not-  have  had  the  liberal  and 
humanitarian  philosophy  of  the  18th  century.  After  him,  we  find 
Jean-Baptiste  Vico,  who  by  sheer  reasoning  succeeded  in  con- 
ceiving the  fruitful  idea  that  mankind  is  an  organism  whose  ele- 
ments are  peoples,  and  in  describing  the  ideal  circle  within  which, 
he  believed,  the  world  revolves,^ 

After  Descartes  and  Vico,  the  work  of  the  philosophers  pro- 
gressed rapidly  and  when  the  end  of  the  18th  century  is  reached,  it 
may  be  observed  that,  always  on  the  basis  of  reason,  they  asserted 
the  rights  of  man  and  prepared  the  way  for  the  Revolution  which 
broke  out  in  1789. 

Voltaire,-  Mably,^  Diderot  *  and  Rousseau  ^  had  all  defended 
the  rights  of  mankind,  demanded  the  emancipation  of  the  serfs  and 
the  suppression  of  war  and  indicated  the  true  object  of  poUtics 
which,  as  Mably  said,  was  justice.  We  come  now  to  Condorcet 
who  in  his  draft  of  a  constitution  proposes  to  regulate  the  conduct 
of  the  French  Republic  towards  other  nations.*^ 

We  shall  pass  over  unmentioned  other  equally  illustrious  writers, 
who  contributed  to  the  destruction  of  the  past  and  to  the  develop- 
ment of  the  eminently  just  principles  of  the  international  com- 
munity. 

It  is  an  undisputed  fact  that  we  have  gradually  come  to  under- 

>  Compar.  Ferrari,  La  menle  di  G.  B.  Vico. 

2  Correspondance  de  Voltaire  el  de  Catherine  II;  Dictionnaire  Philosophique 
(Words  Supplice  and  Torture);  Extrait  d'un  memoire  pour  Venliere  abolition 
de  la  servitude  en  France;  Satire,  La  Tactique  {Odes  XVIII,  Dialogue  XXIV); 
Eloge  funebre  des  offwiers  morts  en  1641. 

3  Stude  de  Vhistoire;  Observations  siir  I'histoire  de  la  Grece. 
*  Fragments  politiques. 

^  Smile. 

^  Projet  de  constitution  frangaise,  tit.  XIII,  Moniteur,  1793,  p.  235;  (Euvres 
de  Condorcet,  v.  X,  p.  580.  See  also  Lettres  d'un  citoyen  des  Stats-Unis  d  un 
Frangais,  CEuvres,  v.  IX,  p.  97. 


ORGANIZATION   OF   THE    INTERNATIONAL   SOCIETY  13 

stand  the  great  conception  expressed  by  Seneca:  "All  this  world 
that  you  see  and  which  contains  everything  that  is  divine  and 
human,  is  one  .  .  .  We  are  the  members  of  a  great  body.  No- 
where is  man  a  stranger  .  .  .    The  universe  is  his  true  country."  ^ 

But  in  order  to  make  this  conception  evident  to  all  men,  it  was 
necessary  to  bring  out  the  idea  foreseen  by  Hume,  Quesnay  and 
Turgot,  that  liberty  is  the  principal  condition  of  commercial 
prosperity. 

It  was  necessary  for  everybody  to  understand  that,  for  the 
benefit  of  all  nations,  the  solidarity  of  interest  of  all  civilized  coun- 
tries should  come  before  the  egotistical  interests  of  their  own 
country.  It  was  also  necessary  that  public  opinion  should  come 
to  realize  the  necessity  and  usefulness  of  connnunity  among 
civilized  nations. 

All  this  has  been  brought  to  fruition  only  in  our  time,  especially 
during  the  last  fifty  years. 

It  is  now  easy  to  see  why  the  problem  of  the  organization  of 
international  society  is  still  so  far  from  solution.  A  rational  or- 
ganization of  the  international  society  was  not  possible  so  long 
as  the  true  concept  of  the  community  and  of  its  rational  basis  was 
not  fully  perceived. 
\  J.  B.  Vico,  in  his  profound  work  La  scienza  nuova,  had  claimed 
that  the  community  of  rights  can  only  arise  out  of  the  community 
of  interests,  which,  as  he  expressed  it,  may  create  in  all  nations 
certain  uniform  ideas  as  to  the  necessity  of  their  association  and 
the  utility  of  each  of  them.^  7") 

IVIontesquieu,  in  his  celebrated  work  on  the  Spiril  of  the  Laws 
had  also  proclaimed  that  the  great  conception  of  community  was 
the  natural  consequence  of  trade.  "The  spirit  of  trade"  said  he, 
"unites  nations.  All  unions  are  based  upon  nmtual  needs.  Two 
nations  trading  together  are  reciprocally  dependent  upon  one 
another.  If  it  is  the  interest  of  one  of  them  to  buy,  it  is  the  interest 
of  the  other  to  sell." 

Now  if  we  consider  that  these  views  have  been  understood  only 
of  late,  that  is,  only  during  the  second  half  of  the  19th  century, 

» Epist.  95. 

^See  Vice's  work  printed  in  1725  under  the  title  Principii  di  una  scienza 
nuova  inUrrno  alia  nalura  (Idle  Nazioni  "per  li  (piali  ai  rilrovano  allri  principii 
del  DiriUi  nalurale  delle  (jejili. 


14  INTERNATIONAL   LAW   CODIFIED 

we  can  see  why  it  is  that  as  yet  the  international  community  is  far 
from  practical  realization.  Indeed,  the  question  has  only  recently 
been  clearly  formulated. 

In  oiir  time,  however,  most  people  have  grasped  the  meaning 
of  the  true  community  among  states,  and  the  idea  of  providing  the 
international  society  with  a  better  organization  thoroughly  per- 
vades the  present  intellectual,  parliamentary,  scientific  and  popu- 
lar movement.  That  aim  will  never  again  be  separated  from  the 
intellectual  domain  of  the  civilized  world.  It  will  impose  itself 
irresistibly  and  with  increasing  force  on  the  conception  of  statesmen 
and  the  aspirations  of  peoples.  It  does  not  matter  whether  this  idea 
be  of  more  or  less  remote  realization.  Every  new  idea  progresses 
more  or  less  slowly,  but  progresses  surely  by  reason  of  its  first 
impulse,  and  cannot  be  permanently  interrupted.  It  develops, 
constantly  growing  in  importance,  and  becomes  a  power  increas- 
ingly irresistible.  It  spreads  in  the  conscience  of  the  masses  and 
gradually  becomes  a  popular  conviction;  finally,  the  idea  succeeds 
,in  dominating  all  facts  and  in  exercising  an  irresistible  influence 
over  all  minds,  and  becomes,  so  to  speak,  the  religion  of  the  time 
until  the  day  of  its  ultimate  triumph. 

So  it  is  with  all  reforms,  and  such  will  be  the  history  of  the 
international  community.  The  final  result  of  this  idea  will  not 
be  the  work  of  to-day  or  to-morrow,  but  that  of  time  and  the  last 
expression  of  the  progress  of  civilization;  its  full  realization  will 
occur  only  in  a  more  or  less  remote  future. 

3.  It  would  be  a  serious  mistake  to  misconceive  the  fact  that 
the  problem  of  the  legal  organization  of  the  international  society 
is  one  of  extreme  complexity  and  most  difficult  solution. 

For  this  solution,  it  is  necessary  in  the  first  place  to  determine 
the  "common"  law  applicable  to  the  community  of  civilized  na- 
tions, then  to  insure  the  effective  sanction  of  that  law,  and  finally 
to  provide  for  efficient  measures  and  means  to  settle  conflicts  and 
difficulties  which  may  arise  among  states. 

As  to  the  recognition  of  a  "common"  law,  it  cannot  be  said  that 
much  has  been  done  to  establish  it;  but  we  may  say  that  a  be- 
ginning has  been  made  along  that  line.  The  treaty  of  Paris  of 
1856  marked  in  that  respect  an  important  step  in  advance.  The 
Great  Powers,  instead  of  confining  their  mission  to  regulating  the 
consequences  of  war,  as  was  customary  in  the  past,  established 


ORGANIZATION   OF  THE   INTERNATIONAL   SOCIETY  15 

uniform  rules  respecting  the  rights  of  neutrals  and  belligerents 
in  maritime  war. 

Subsequently,  several  treaties  were  concluded  designed  to  assure 
the  needs  of  commerce,  the  protection  of  property  and  industry, 
the  freedom  of  river  navigation,  the  abolition  of  the  slave  trade,  the 
development  of  civilization  and  trade  in  Africa,  and  the  uniform 
regulation  of  other  common  interests.  It  would  take  too  long  to 
enumerate  these  treaties.  Finally,  it  was  proposed  to  establish  a 
"common"  law  intended  to  civilize  war,  and  to  limit  so  far  as 
possible  its  evils  and  dangers,  and  delegates  of  the  nations  even 
met  for  that  purpose  at  Brussels  in  1874. 

As  has  already  been  observed,  the  idea  of  recognizing  that  it  is 
the  collective  interest  of  all  states  to  regulate  certain  matters 
pertaining  to  their  general  needs  has  already  been  realized  in  some 
measure. 

So  far  the  most  serious  difficulty,  one  considered  as  almost  in- 
superable, lies  in  the  establishment  of  appropriate  institutions  to 
insure  the  legal  sanction  and  protection  of  the  common  law,  and 
of  legal  means  for  settling  conflicts  and  compelling  everyone  to 
respect  established  rules.  The  result  of  the  lack  of  a  superior  au- 
thority and  of  appropriate  legal  institutions  is  that  states  have  thus 
far  found  no  other  efficient  means  of  protecting  their  rights  than 
the  employment  of  their  military  forces  and  those  of  their  allies. 

Thus  it  happens  that  stat(?s  having  to  rely  only  on  their  military 
power,  have  all  sought  to  be  better  armed  than  their  rivals.  This 
unfortunate  tendency  has  resulted  in  a  system  of  excessive  arma- 
ments. The  means  of  attack  being  constantly  perfected,  makes  it 
likewise  necessary  for  the  states  constantly  to  improve  their  means 
of  defense  so  as  to  be  able  to  oppose  a  more  effective  resistance  to 
an  increasingly  efficient  attack. 

As  a  consequence  of  these  armaments  whose  cost  is  constantly 
growing,  the  greater  part  of  the  revenues  of  practically  every  state 
is  at  the  present  time  absorbed  by  military  expenditures,  and  the 
requirements  of  every  other  branch  of  the  public  service  are  sub- 
ordinate to  those  of  the  Ministry  of  War.  Furthermore,  as  the 
ordinary  resources  are  not  always  sufficient  to  meet  the  needs, 
governments  have  recourse  to  extraordinary  taxes  and  to  loans. 
The  figures  of  Europe's  debt  and  interest  payments  arc  stupendous. 

As  a  consequence  of  this  state  of  affairs,  there  is  already  in  all 


16  INTERNATIONAL  LAW   CODIFIED 

countries  a  movement  of  protest  against  the  scourge  of  armed 
peace,  which  has  transformed  the  civihzed  world  into  a  huge  gun 
factory.  The  complaints  against  the  evils  due  to  that  fatal  exalta- 
tion of  militarism,  have  become  in  the  last  few  years  more  frequent 
and  more  general.^ 

Publicists,  statesmen,  associations  of  manufacturers,  and  the 
workers  throughout  the  world  are  all  agreed  upon  the  necessity  of 
establishing  upon  sound  bases  the  organization  of  the  international 
society  and  of  finding  means  to  end  this  unfortunate  state  of 
affairs  in  which  the  principal  guaranty  of  a  nation's  rights  is  its 
army  and,  in  last  resort,  war. 

^  The  associations  for  eliminating  the  evils  of  armed  peace  and  the  dangers 
of  war  originated  in  the  United  States,  extending  later  on  to  Europe.  Accord- 
ing to  the  Bureau  international  de  la  Paix,  there  are  94  of  these,  54  of  which 
are  in  America  and  40  in  Europe. 

The  first  societies  of  the  friends  of  peace  originated  in  the  United  States, 
one  of  the  first  to  initiate  the  movement  being  Rev.  Mr.  Worcester,  who 
founded  in  Boston  a  rehgious  paper,  in  which  he  stigmatized  the  evils  of  war. 
Then  came  George  Channing,  who  addressed  to  the  Congress  of  the  United 
States  a  memorial  in  which  he  said:  "We  are  convinced  that  a  government 
sincerely  disposed  to  undertake  the  great  and  sublime  mission  of  pacifying 
the  world  would  not  lack  means  for  succeeding  in  this  task.  Thanks  to  the 
persistent  and  wise  efforts  of  such  a  government,  more  moderate  principles 
would  prevail  in  the  settlement  of  international  disputes,  differences  between 
nations  could  be  referred  to  an  impartial  arbitrator  and  peoples  could  reach 
an  agreement  for  the  purpose  of  reducing  their  military  organizations,  so 
great  and  so  costly." 

From  America,  the  movement  spread  to  Europe,  especiallj'  in  England, 
where  the  society  of  the  Friends  of  Peace  founded  a  paper  called  The  Herald 
of  Peace.  (For  more  details,  see  the  work  of  Descamps  and  the  pamphlet  of 
Catellani,  La  propaganda  della  pace.)  Nor  should  we  fail  to  recall  that  in  1873 
there  was  created  in  London  the  Association  for  the  Reform  and  Codification 
of  the  Law  of  Nations,  which  changed  its  name  in  1894  to  "  International  Law 
Association";  that  in  1873  also,  at  the  sxiggestion  of  the  Americans  Lieber 
and  Miles  and  of  the  Genevese  Moynier,  tlie  Institute  of  International  Law 
was  founded  by  Rolin-Jacquemyns,  Bluntschli,  Mancini  and  other  jurists. 
This  institution,  whose  object  was  the  promotion  of  international  law,  would 
certainly  have  produced  excellent  results  had  it  always  been  maintained  within 
the  domain  which  had  been  assigned  to  it  at  the  time  of  its  foundation. 

The  propaganda  in  favor  of  international  arbitration  as  a  means  of  elim- 
inating war  has  made  rapid  progress  and  the  movement  has  received  great 
unity  of  action  as  the  result  of  international  congresses,  in  which  the  associa- 
tions of  the  different  countries  have  met.  The  Americans  are  still  foremost. 
The  jurists  of  that  country  held  a  congress  at  Lisbon  in  1888  with  the  Spanish 
and  Portuguese  jurists  to  discuss  the  need  of  instituting  a  court  of  arbitration. 
One  of  the  most  important  meetings  was  the  Pan-American  Congress,  held 
in  the  United  States  on  the  initiative  of  Secretary  of  State  Blaine. 


ORGANIZATION   OF  THE   INTERNATIONAL   SOCIETY  17 

4.  Various  plans  have  been  suggested  with  a  view  to  securing  a 
more  rational  organization  of  the  international  society.  This  is 
not  the  place  to  enumerate  all  these  propositions.  Some  issue  from 
scientists  and  scientific  associations  which  have  studied  the  solu- 
tion of  this  complicated  problem;  others  sum  up  the  general  senti- 
ment expressed  by  the  associations  in  pubhc  meetings. 

Bluntschli  conceived  the  idea  of  organizing  mankind  as  a 
great  state,  of  which  all  the  individual  states  were  to  be  members. 
In  his  view,  no  universal  empire  or  monarchy  was  necessary 
to  attain  that  end.  The  confederation,  or  union  of  states,  was 
sufficient.  This  ideal  conception,  however,  does  not  appear  to 
us  more  practicable  of  realization  than  Plato's  Republic  or 
Thomas  More's  Utopia.  We  readily  admit  that  a  certain  com- 
munity of  interests  may  develop  among  men  of  similar  origin, 
traditions  and  language,  Uving  under  the  same  social  and  moral 
conditions,  and  that  these  men  may  form  a  state  for  the  defense 
of  those  interests;  but  it  would  seem  extremely  difficult  to  expect 
the  same  result  from  the  combined  nations  of  the  universe. 

While  not  questioning  the  unity  of  mankind,  it  must  be  remem- 
bered that  civilization  describes  a  parabola  and  that  the  diverse 
moral  conditions  prevaiHng  in  the  various  nations  will  always 
determine  certain  differences  in  the  intellectual  development  and 
civilization  of  the  peoples  of  the  various  portions  of  the  universe. 

To  give  to  the  society  of  states  the  form  of  a  Confederation, 
with  its  distinctive  legislature,  judiciary  and  Executive  above  and 
beyond  the  governments  of  the  different  states,  is  the  basis, 
seemingly  attractive,  of  the  numerous  schemes  conceived  with  that 
end  in  view,  beginning  with  those  of  Sully,  Kant,  Rousseau  and 
Bentham,  and  ending  with  those  of  our  contemporaries,  among 
whom  may  be  found  Malardies,  Lorimer  and  others.  The  scheme 
generally  proposed  was  to  constitute  a  permanent  Congress; 
giving  to  the  assembled  confederated  states  voting  representation 
proportional  to  their  actual  degree  of  power  and  importance  and 
placing  at  the  disposal  of  the  central  power  an  armed  body  suffi- 
cient to  insure  the  respect  of  its  decisions. 

In  our  opinion,  however,  these  schemes  which  at  first  sight  are 
attractive  would  not  eliminate  the  evils  they  are  designed  to 
remove,  but  would  rather  perpetuate  them.  Indeed,  they  are 
calculated  to  bring  about  the  preponderance  of  t\\v  great  powers 


18  INTERNATIONAL  LAW   CODIFIED 

to  the  detriment  of  the  independence  of  the  smaller  states.  The 
same  thing  occurs  in  cases  of  bankruptcy,  in  which,  inasmuch  as 
each  creditor  has  a  vote  proportional  to  the  importance  of  his 
claim,  it  often  suffices  for  the  debtor  to  make  an  arrangement 
with  his  principal  creditor  to  the  disadvantage  of  the  smaller 
creditors. 

5.  The  manifestations  against  armed  peace  having,  within  the 
last  few  years,  become  more  general,  the  measure  which  has  been 
considered  as  expressing  popular  sentiment  as  to  the  best  way  to 
render  armaments  unnecessary  and  to  eliminate  war  is  arbitration 
as  a  judicial  method  of  peacefully  settling  all  international  dif- 
ferences. 

This  measure  has  been  on  the  program  of  legal  and  scientific 
associations,  and  of  philanthropic,  political,  and  labor  associations 
of  all  nations.  Peace  societies  have  been  particularly  active  in 
their  propaganda  in  favor  of  arbitration;  several  of  these  societies 
have  been  founded  for  the  special  purpose  of  bringing  about  its 
adoption  as  the  best  means  of  ending  the  scourge  of  armed  peace. 

All  these  societies  agree  that  the  legal  organization  of  interna- 
tional society  could  be  effected  if  all  the  states  would  bind  them- 
selves to  submit  all  their  differences  to  arbitration. 

They  believe  that  general  disarmament  and  the  disappearance 
of  war  might  thus  be  brought  about.  ^ 

Arbitration  has  become  popular  especially  since  the  settlement 
by  the  Geneva  Tribunal  of  Arbitration  of  the  important  dispute 
between  Great  Britain  and  the  United  States.  From  the  view- 
point of  the  gravity  of  the  matter  in  issue,  it  is  the  only  very  im- 
portant case  submitted  to  arbitration.  Other  questions  settled 
by  arbitration  are  notable  rather  on  account  of  their  number  than 
on  account  of  the  point  involved.    There  have  been  some  seventy 

^  The  society  which  has  given  to  the  movement  a  truly  international  char- 
acter is  the  Inter-Parliamentary  Union  for  establishing  arbitration  as  the 
system  of  procedure  for  the  solution  of  international  controversies  and  for  the 
prevention  of  war. 

The  Union's  first  conference  was  held  in  Paris,  in  June,  1889,  under  the 
presidency  of  Jules  Simon;  the  second  conference  was  held  at  London,  under 
the  presidency  of  Lord  Herschell;  the  third  at  Rome  in  1891,  under  the  presi- 
dency of  Biancheri;  the  fourth  at  Berne  in  1892,  presided  over  by  Rlr.  Droz; 
the  fifth,  at  The  Hague,  in  1894,  presided  over  by  Mr.  Rohasen;  the  sixth,  at 
Brussels,  in  1895,  presided  over  by  Senator  Descamps,  and  the  seventh  at 
Budapesth  in  1906. 


ORGANIZATION   OF   THE   INTERNATIONAL   SOCIETY  19 

cases  of  arbitration  since  1815,  the  United  States  participating  in 
thirty-five  and  Great  Britain  in  twenty-one.  But  there  has  been 
no  other  case  of  arbitration  so  important  as  that  of  the  Alabama 
Claims,  which,  had  it  not  been  amicably  settled,  would  inevitably 
have  led  to  war  between  Great  Britain  and  the  United  States. 

In  that  case,  the  particular  factor  preventing  a  recourse  to  arms 
was  the  realization  of  the  British  Government  that  a  peaceful 
settlement  of  the  difficulty  was  most  desirable,  as  it  knew  that  if 
war  were  declared,  the  United  States  would  blockade  the  northern 
and  southern  ports  of  England  and  that,  the  cotton  trade  being 
at  a  standstill,  500,000  workers  employed  in  cotton  factories  would 
have  to  be  taken  care  of.  The  United  States  was  likewise  con- 
vinced of  the  advantage  of  a  peaceful  settlement.  The  two  Govern- 
ments were  consequently  disposed  to  adopt  any  measure  which 
would  satisfy  the  national  pride  of  the  United  States  without 
wounding  that  of  Great  Britain.  That  is  the  secret  of  the  Geneva 
arbitration. 

We  do  not  wish  in  any  way  to  lessen  the  importance  of  that 
arbitration.  It  is  highly  to  the  credit  of  the  statesmen  in  power 
that  they  realized  the  true  interests  of  their  respective  countries, 
and  had  the  energy  and  sagacity  necessary  for  carrying  to  a 
successful  end  negotiations  which  covered  a  period  of  six  years. 
Great  difficulties  had  to  be  overcome  in  order  to  conclude  the 
treaty  of  Washington  upon  which  the  compromis  was  based. 
It  required  remarkable  political  wisdom  to  conduct  the  long  and 
heated  discussions,  amid  the  excitations  of  the  press  and  the 
recriminations  of  a  parliamentary  opposition  which  threatened 
to  force  the  two  countries  into  war. 

It  is  also  greatly  to  the  credit  of  the  jurists  who  composed  the 
arbitral  tribunal  that  they  succeeded  in  rendering  an  award  ac- 
ceptable to  both  parties;  and  it  is  with  a  justifiable  national  pride 
that  we  mention  the  fact  that  an  Italian,  Count  Sclopis,  was  the 
President  of  the  tribunal. 

But  to  infer  from  this  decision  that  the  solution  of  the  gravi; 
problem  has  been  found;  to  believe,  in  the  present  state  of  the 
case,  that  by  making  arbitration  the  common  form  of  international 
justice  the  elimination  of  war  and  of  disarmament  have  been 
achieved  is,  in  our  opinion,  a  great  illusion. 

6.  While  recognizing  the  great  importance  of  arbitration,  we 


20  INTERNATIONAL   LAW   CODIFIED 

can  not  admit  that  the  mere  fact  that  a  great  number  of  states 
(as,  for  example,  whose  which  were  represented  at  the  Hague 
Conference)  have  agreed  to  sign  a  general  treaty  of  arbitration, 
could  suffice  to  abolish  the  predominance  of  military  force  and 
provide  a  definitive  legal  organization  of  international  society. 
C  First  of  all,  it  must  be  borne  in  mind  that  a  general  obligation 
to  submit  to  arbitration  is  subjected,  even  by  those  who  favor  it, 
to  the  reservation  that  it  must  not  involve  either  the  dignity  or 
the  honor  of  the  nation.^ 

The  difficulties  existing  between  Great  Britain  and  the  United 
States  were  easily  settled,  owing  to  the  willingness  of  both  Govern- 
ments, which  were  equally  desirous  of  reaching  a  peaceful  solution. 
Would  it  have  been  so,  had  one  or  the  other  considered  war  ad- 
vantageous to  its  policies?  If  so,  what  would  have  prevented  it 
from  claiming  that  its  national  honor  was  violated? 

Furthermore,  let  us  consider  that  the  necessity  of  armaments 
and  the  desire  to  be  stronger  than  the  other  states  are  not  designed 
to  bring  about  the  use  of  arms  for  the  settlement  of  all  kinds  of 
difficulties,  such  as  those  concerning  boundary  limits,  fishing  privi- 
leges in  certain  seas,  or  international  pecuniary  claims  for  indem- 
nities for  private  injuries  sustained.  Every  Great  Power  seeks  to 
predominate  in  strength  in  order  to  give  weight  to  its  preponder- 
ance in  international  questions,  such  as  those  relating  to  the  Near- 
East  and  the  Mediterranean.  Now,  whenever  it  is  admitted  that 
disagreements  on  such  questions,  for  example,  those  of  colonial 
expansion,  or  of  influence  in  China  or  Africa,  cannot  be  referred  to 
arbitration,  it  must  be  recognized  that  it  is  quite  natural  that  none 
of  the  Great  Powers,  obliged  in  such  matters  to  rely  solely  upon 
their  own  strength  and  that  of  their  allies,  can  afford  to  dispense 
with  the  endeavor  to  be  the  best  armed. 

Should  the  noble  efforts  of  the  scientists  and  of  scientific  so- 
cieties in  favor  of  arbitration,  the  propaganda  pursued  by  all  the 
peace  societies  of  Europe  and  America,  be  considered  as  of  no 
avail? 

Should  the  unremitting  perseverance  and  great  wisdom  of  states- 
men, the  measures  introduced  in  parliaments  to  induce  Govern- 
ments to  engage  to  submit  to  arbitration  all  international  disputes, 
be  considered  as  aspirations  without  result  and  practical  effect? 
Certainly  not. 


ORGANIZATION   OF   THE    INTERNATIONAL    SOCIETY  21 

This  trend  of  public  opinion — a  tendency  which  has  acquired 
of  late  a  better  unity  of  direction,  owing  to  a  concentration  of  all 
the  forces  favoring  arbitration — must  be  deemed  without  doubt 
the  most  remarkable  achievement  of  civilization. 

The  votes  expressed  in  favor  of  arbitration  by  congresses  of 
scientists,  parliaments,  and  popular  assemblies,  are  the  most 
solemn  expression  of  the  general  sentiment,  which  is  a  protest 
against  armed  peace;  they  are  the  luminous  expression  of  the 
thought  in  the  mind  of  all,  that  is,  to  give  a  new  direction  to 
international  politics  and  to  make  governments  recognize  that, 
instead  of  continuing  to  rely  on  force,  their  supreme  duty  lies  in 
submission  to  justice. 

And  who  will  deny  that  humanitarian  propaganda  has  not  met 
alreadj^  with  great  practical  success?  It  has  already  acquired  a 
footing  in  parliaments;  but  thereafter,  just  as  success  always  re- 
wards perseverance,  so  public  sentiment  against  the  scourge  of 
armed  peace  has  entered  the  highest  spheres. 

The  sovereign  of  a  powerful  Empire  finally  had  the  courage 
solemnly  to  declare  to  other  governments  that  armed  peace  was 
ruinous  to  all;  that  it  was  absolutely  necessary  to  find  a  remedy  to 
this  necessity  of  continual  armaments  and  that  it  was  the  duty  of 
all  governments  to  devise  means  for  preventing  the  calamity  which 
was  threatening  the  whole  world.  For  that  purpose,  the  Czar,  by 
his  note  of  August  12/24,  1898,  invited  all  the  Governments  of 
the  world  to  agree  on  the  best  means  of  preventing  the  inevitable 
disastrous  consequences  of  excessive  armaments. 

7.  The  Czar's  note  greatly  impressed  statesmen  and  Govern- 
ments, and  awakened  great  hopes  and  encouragement.'  One  of 
the  difficulties  was  to  determine  the  programme  of  the  Conference. 
Nevertheless,  the  Conference  assembled  at  The  Hague  on  May  18, 
1899,  with  the  object  of  adopting  measures  best  calculated  to  en- 
sure to  nations  the  blessings  of  peace  and  a  proper  limitation  of 
excessive  armaments. 

The  Conference  did  not  succeed  in  fulfilling  the  great  hopes  of 
its  achievements  which  had  been  entertained,  nor  did  it  succeed 
in  developing  the  programme  of  work  for  which  it  had  been  called. 

'  See  our  article  written  at  the  time  of  the  publication  of  the  note  of  Nicolas 
II  to  Count  Mouraviow,  in  the  Revue  gtntrale  de  droit  international  public, 
V.  V,  1898,  p.  732. 


22  INTERNATIONAL  LAW  CODIFIED 

Nevertheless,  it  laid  down  the  primary  bases  for  the  pacific  settle- 
ment of  international  disputes  and  for  the  substitution  of  law  and 
justice  for  force. 

The  Powers  which  were  represented  there  were  Austria-Hungary, 
Belgium,  Bulgaria,  China,  Denmark,  France,  Germany,  Japan, 
Great  Britain,  Greece,  Italy,  Luxemburg,  Mexico,  Montene- 
gro, The  Netherlands,  Persia,  Portugal,  Rumania,  Russia,  Servia, 
Siam,  Spain,  the  United  States,  Sweden  and  Norway,  Switzerland, 
and  Turkey. 

The  plenipotentiaries  of  these  states  succeeded  in  establishing 
rules  for  peacefully  settling  international  disputes,  admitting  that, 
in  order  to  prevent,  so  far  as  possible,  recourse  to  force  for  their 
settlement,  it  was  necessary  to  resort  to  all  measures  calculated  to 
attain  that  end — good  offices,  mediation,  examination  of  the  facts 
by  international  Commissions  of  Inquiry,  and  arbitration.  Those 
matters  constituted  the  object  of  the  first  Convention,  in  which 
were  formulated  rules  concerning  recourse  to  good  offices  and  to 
mediation;  the  institution  of  an  international  Commission  of  In- 
quiry, whose  office  would  be  to  facilitate  the  solution  of  differences 
of  an  international  nature  not  involving  honor  or  vital  interests, 
but  arising  from  a  difference  of  view  on  questions  of  fact,  and 
lastly,  international  arbitration,  having  for  its  object  the  settle- 
ment of  disputes  between  states  arisuig  out  of  questions  of  a  legal 
nature  and  particularly  questions  of  interpretation  and  application 
of  international  conventions.  The  plenipotentiaries  proposed,  be- 
sides, to  regulate  war  on  land  between  two  or  more  Powers  rep- 
resented at  the  Conference,  declaring  at  the  same  time  that  the 
provisions  would  cease  to  be  compulsory  if,  in  a  war  between  the 
contracting  Powers,  a  non-contracting  Power  should  join  one  of 
them. 

This  Convention  was  signed  on  July  29,  1899,  by  all  the  states 
except  Switzerland  and  China  and,  according  to  the  provisions 
of  article  3,  was  to  enter  into  force  from  the  day  of  its  ratification 
by  the  individual  Powers,  with  the  understanding  that  the  rati- 
fications should  be  deposited  at  The  Hague  and  that  a  copy  thereof 
should  be  notified  through  diplomatic  channels  to  each  of  the  con- 
tracting Powers.  On  this  basis  were  laid  the  foundations  of  the 
laws  and  customs  of  war  on  land,  regulations  being  drawn  up  for 
determining  the  rights  and  duties  of  the  belligerent  parties  and 


ORGANIZATION   OF  THE   INTERNATIONAL   SOCIETY  23 

their  obligations  in  regard  to  prisoners  of  war,  tiie  sick  and  the 
wounded,  and  for  defining  the  exercise  of  belligerent  rights  with 
a  view  to  restricting  the  indiscriminate  use  of  methods  and  instru- 
ments intended  to  injure  the  enemy. 

With  a  view  to  diminishing  the  evils  incidental  to  war,  the 
plenipotentiaries  agreed  to  make  applicable  to  maritime  war  the 
principles  of  the  Geneva  Convention  of  August  22,  1864,  which 
regulated  the  condition  of  hospital-ships,  of  the  sick  and  the 
wounded,  and  of  those  engaged  in  caring  for  them. 

The  plenipotentiaries  finally  signed  three  declarations  concern- 
ing: 

I.  A  prohibition  against  launching  projectiles  and  explosives 
from  balloons,  or  similar  contrivances.  (This  declaration  was  not 
signed  by  Great  Britain.) 

II.  A  prohibition  against  the  use  of  projectiles  the  object  of 
which  is  the  diffusion  of  asphyxiating  or  deleterious  gases.  This 
declaration  was  compulsory  for  the  states  which  subscribed  it, 
among  which  Great  Britain  and  the  United  States  of  America  were 
not  included. 

III.  The  prohibition  against  the  use  of  dum-dum  bullets  which 
expand  and  flatten  easily  in  the  human  body,  such  as  bullets  with 
a  hard  envelope  which  does  not  entirely  cover  the  core,  or  is  pierced 
with  incisions.  This  declaration  was  not  signed  by  Great  Britain, 
Portugal,  and  the  United  States  of  America. 

These  declarations  were  not  binding  upon  the  states  which  signed 
them  unless  ratified  and  the  ratifications  were  deposited  at  The 
Hague. 

The  Conference,  furthermore,  expressed  various  solemn  wishes 
(voEux)  in  regard  to  matters  which  should  constitute  the  programme 
of  a  later  conference :  Revision  of  the  Geneva  Convention  relating 
to  the  sick  and  wounded  in  time  of  war;  rights  and  duties  of  neu- 
trals; adoption  of  an  agreement  regarding  the  type  and  caliber  of 
naval  guns;  conventional  limitation,  of  armed  forces  on  land  and 
sea;  immunity  of  private  property  in  maritime  war;  and  the 
regulation  of  bombardment. 

Thus,  the  first  Conference  did  not  succeed  in  developing  the  pro- 
gramme outlined  in  the  Czar's  note,  but  established  the  principle 
that  the  matters  on  which  an  agreement  had  not  been  reached 
should  constitute  the  subject-matter  of  future  Conferences. 


24  INTERNATIONAL   LAW    CODIFIED 

8.  In  a  protocol  signed  at  The  Hague  on  June  14,  1907,  having 
in  view  the  fact  that  states  not  admitted  to  the  first  Conference 
might  have  adhered  to  the  Convention  for  the  pacific  settlement 
of  international  disputes  signed  on  July  29,  1899,  the  adherence 
of  several  States  was  recorded,  namely:  Argentina,  Bolivia,  Brazil, 
Chili,  Colombia,  Cuba,  Ecuador,  Guatemala,  Haiti,  Nicaragua, 
Panama,  Paraguay,  Peru,  Santo  Domingo,  Salvador,  Venezuela. 

The  problem  which  then  urgently  required  solution  consisted 
in  giving  a  better  legal  organization  to  international  society;  and 
this  undoubtedly  could  not  be  considered  as  solved.  That  is  the 
reason  why  a  second  Conference  was  proposed  on  the  initiative 
of  Mr.  Roosevelt,  President  of  the  United  States  of  America.  He 
proposed  its  meeting  by  his  circular  note  of  October  21,  1904, 
to  discuss  and  settle  various  questions  in  conformity  with  the 
solemn  wishes  expressed  by  the  first  Conference,  which  had  post- 
poned their  solution.  It  met  at  The  Hague  on  the  invitation  of 
the  Emperor  of  Russia  July  15,  1907,  and  ended  its  labors  with 
the  Final  Act  signed  on  the  18th  of  October  following.  44  States 
were  represented,  namely:  Argentina,  Austria-Hungary,  Belgium, 
Bolivia,  Brazil,  Bulgaria,  Chile,  China,  Colombia,  Denmark, 
Ecuador,  France,  Germany,  Japan,  Great  Britain,  Greece,  Guate- 
mala, Haiti,  Italy,  Luxemburg,  Mexico,  Montenegro,  Nicaragua, 
Norway,  Panama,  Paraguay,  Netherlands,  Persia,  Peru,  Portugal, 
Rumania,  Russia,  Salvador,  Santo  Domingo,  Servia,  Siam,  Spain, 
the  United  States,  Switzerland,  Sweden,  Turkey,  Uruguay,  and 
Venezuela. 

The  conventions  and  declarations  were  as  follows: 

I.  Convention  pour  le  reglement  pacifique  des  conflits  intema- 
tionaux  (Convention  for  the  pacific  settlement  of  international  dis- 
putes). 

II.  Convention  concernant  la  limitation  de  I'emploi  de  la  force 
pour  le  recouvrement  de  dettes  contractuelles  (convention  respect- 
ing the  limitation  of  the  employment  of  force  for  the  recovery  of 
contract  debts). 

III.  Convention  relative  a  I'ouverture  des  hostilites  (Conven- 
tion relative  to  the  opening  of  hostilities). 

IV.  Convention  concernant  les  lois  et  coutumes  de  la  guerre 
sur  terre  (Convention  respecting  the  laws  and  customs  of  war  on 
land). 


ORGANIZATION   OF   THE    INTERNATIONAL   SOCIETY  25 

V.  Convention  concernant  les  droits  et  les  devoirs  des  Puissances 
et  des  personnes  neutres  en  cas  de  guerre  sur  terre  (Convention 
respecting  tlie  rights  and  duties  of  neutral  Powers  and  persons  in 
case  of  war  on  land) . 

VI.  Convention  relative  au  regime  des  navires  de  commerce 
ennemis  au  debut  des  hostilites  (Convention  relative  to  the  status 
of  enemy  merchant  ships  at  the  outbreak  of  hostilities). 

VII.  Convention  relative  a  la  transformation  des  navires  de 
commerce  en  batiraents  de  guerre  (Convention  relative  to  the 
conversion  of  merchant  ships  into  war  ships). 

VIII.  Convention  relative  a  la  pose  de  mines  sous-marines  auto- 
matiques  de  contact  (Convention  relative  to  the  laying  of  auto- 
matic submarine  contact  mines). 

IX.  Convention  concernant  le  .bombardement  par  des  forces 
navales  en  temps  de  guerre  (Convention  respecting  bombardment 
by  naval  forces  in  time  of  war). 

X.  Convention  pour  I'adaptation  a  la  guerre  maritime  des 
principes  de  la  Convention  de  Geneve  (Convention  for  the  adapta- 
tion to  naval  war  of  the  principles  of  the  Geneva  Convention). 

XI.  Convention  relative  a  certaines  restrictions  a  I'exercice  du 
droit  de  capture  dans  la  guerre  maritime  (Convention  relative  to 
certain  restrictions  with  regard  to  the  exercise  of  the  right  of 
capture  in  naval  war). 

XII.  Convention  relative  a  I'etablissement  d'une  Cour  Inter- 
nationale des  prises  (Convention  relative  to  the  creation  of  an 
international  prize  court). 

XIII.  Convention  concernant  les  droits  et  les  devoirs  des  Puis- 
sances neutres  en  cas  de  guerre  maritime  (Convention  concerning 
the  rights  and  duties  of  neutral  Powers  in  naval  war). 

XIV.  Declaration  relative  a  I'interdiction  de  lancer  des  pro- 
jectiles et  des  explosifs  du  haut  de  ballons  (Declaration  prohibiting 
the  discharge  of  projectiles  and  explosives  from  balloons). 

The  above  conventions  and  the  declaration  each  constituted 
separate  acts  and  all  bore  the  date  of  the  Final  Act,  namely, 
October  18,  1907,  the  Plenipotentiaries  having  the  right  to  sign 
them  until  the  end  of  June,  1008.  On  that  day,  by  virtue  of  the 
provisions  sanctioned  in  the  Final  Act,  the  term  expired  which  had 
been  granted  for  the  signature  of  the  separate  acts,  except  conven- 
tion XII,  which,  it  was  provided  (Art.  53),  was  to  be  signed  on  the 


2(3  INTERNATIONAL   LAW    CODIFIED 

day  of  the  deposit  of  ratifications.  The  said  acts  were  signed  on 
the  day  fixed  by  all  of  the  contracting  states,  every  state  making 
certain  reservations  concerning  various  articles,  as  had  been 
brought  out  in  the  general  discussion. 

The  United  States  did  not  sign  the  sixth,  seventh  and  thirteenth 
conventions,  and  made  reservations  as  to  the  first. 

The  Conference,  actuated  by  the  spirit  of  mutual  agreement 
and  concession  characterizing  its  deliberations,  made  the  following 
declaration  in  the  Final  Act,  affirming  the  principles  which  they 
regarded  as  unanimously  admitted: 

"It  is  unanimous: 

"  1.  In  admitting  the  principle  of  compulsory  arbitration. 

"2.  In  declaring  that  certain  disputes,  in  particular  those  relat- 
ing to  the  interpretation  and  application  of  the  provisions  of  inter- 
national agreements,  may  be  submitted  to  compulsory  arbitration 
without  restriction. 

"  3.  Finally,  it  is  unanimous  in  proclaiming  that  although  it  has 
not  yet  been  found  feasible  to  conclude  a  convention  in  this  sense, 
nevertheless  the  divergences  of  opinion  which  have  come  to  light 
have  not  exceeded  the  bounds  of  judicial  controversy,  and  that,  by 
working  together  here  during  the  past  four  months,  the  assembled 
Powers  have  not  only  learned  to  understand  one  another  and  to 
draw  closer  together,  but  have  succeeded  in  the  course  of  this  long 
collaboration  in  evolving  a  very  lofty  conception  of  the  common 
welfare  of  humanity." 

The  Conference  further  unanimously  adopted  the  following 
resolution:  "The  Second  Peace  Conference  confirms  the  resolution 
adopted  by  the  Conference  of  1899  in  regard  to  the  limitation  of 
mihtary  expenditure;  and  inasmuch  as  military  expenditure  has 
considerably  increased  in  almost  every  country  since  that  time, 
the  Conference  declares  that  it  is  eminently  desirable  that  the 
governments  should  resume  the  serious  examination  of  this  ques- 
tion." 

It  also  gave  expression  to  the  following  opinions: 

1.  The  Conference  calls  the  attention  of  the  signatory  Powers 
to  the  advisability  of  adopting  the  annexed  draft  convention  for 
the  creation  of  a  Judicial  Arbitration  Court,  and  of  bringing  it 
into  force  as  soon  as  an  agreement  has  been  reached  respecting 
the  selection  of  the  judges  and  the  constitution  of  the  court. 


ORGANIZATION    OP   THE    INTERNATIONAL   SOCIETY  27 

2.  The  Conference  expresses  the  opinion  that,  in  case  of  war, 
the  responsible  authorities,  civil  as  well  as  military,  should  make 
it  their  special  duty  to  ensure  and  safeguard  the  maintenance  of 
pacific  relations,  more  especially  of  the  commercial  and  industrial 
relations  between  the  inhabitants  of  the  belligerent  states  and 
neutral  countries. 

3.  The  Conference  expresses  the  opinion  that  the  Powers  should 
regulate,  by  special  treaties,  the  position,  as  regards  military  bur- 
dens, of  foreigners  residing  within  their  territories. 

4.  The  Conference  expresses  the  opinion  that  the  preparation 
of  regulations  relative  to  the  laws  and  customs  of  naval  war 
should  figure  in  the  program  of  the  next  Conference,  and  that 
in  any  case  the  Powers  may  apply,  as  far  as  possible,  to  war  at 
sea  the  principles  of  the  convention  relative  to  the  laws  and  customs 
of  war  on  land. 

5.  Finally,  the  Conference  recommends  to  the  Powers  the 
assembly  of  a  Third  Peace  Conference,  which  might  be  held  within 
a  period  corresponding  to  that  which  has  elapsed  since  the  pre- 
ceding Conference,  at  a  date  to  be  fixed  by  common  agreement 
between  the  Powers,  and  it  calls  their  attention  to  the  necessity  of 
preparing  the  programme  of  this  Third  Conference  a  sufficient 
time  in  advance  to  ensure  its  deliberations  being  conducted  with 
the  necessary  authority  and  expedition. 

In  order  to  attain  this  object  the  Conference  considers  that  it 
would  be  very  desirable  that,  some  two  years  before  the  probable 
date  of  the  meeting,  a  preparatory  Committee  should  be  charged 
by  the  Governments  with  the  task  of  collecting  the  various  pro- 
posals to  be  submitted  to  the  Conference,  of  ascertaining  what 
subjects  are  ripe  for  embodiment  in  an  international  regulation, 
and  of  preparing  a  program  which  the  Governments  should 
decide  upon  in  sufficient  time  to  enable  it  to  be  carefully  examined 
by  the  countries  interested.  This  Committee  should  further  be 
intrusted  with  the  task  of  proposing  a  system  of  organization  and 
procedure  for  the  Conference  itself. 

Without  entering  into  the  details  of  the  rules  established  in 
common  accord  between  the  states  through  the  conventions  in- 
dicated, which  we  shall  cite  hereafter,  it  is  an  indisputable  fact 
that  the  work  of  the  Conference,  t^ken  as  a  whole,  constitutes 
the  most  important  effort  of  international  action  toward  facilitat- 


28  INTERNATIONAL   LAW   CODIFIED 

ing  the  solution  of  many  questions  and  especially  toward  develop- 
ing the  noble  idea  of  the  preponderance  of  justice  and  right  in  the 
international  society. 

The  periodicity  of  the  Peace  Conferences,  voted  unanimously 
by  the  many  states  represented,  is  the  surest  proof  of  the  common 
aspiration  to  find  means  of  limiting  excessive  armaments.  This, 
on  the  whole,  affords  ground  for  the  belief  that  in  a  more  or  less 
remote  future  the  preponderance  of  right  and  justice  will  prevail 
in  the  international  society. 

9.  The  solution  of  the  problem  cannot  be,  however,  the  ex- 
clusive work  of  diplomacy;  it  will  be,  in  the  last  analysis,  the  work 
of  the  combined  intellectual  forces  of  all  civilized  countries.  The 
combination  of  forces  and  the  propaganda  of  those  favoring  a 
peaceful  organization  of  the  international  society  have  had  very 
important  results  by  way  of  positing  the  problem  and  causing 
diplomacy  to  recognize  the  necessity  of  reaching  a  solution.  Now, 
the  intellectual  forces  of  all  countries  are  needed  to  indicate  to 
diplomacy  what  this  solution  must  be.  If  science  unites  all  its 
forces  for  the  purpose  of  solving  the  problem  of  the  organization 
of  the  society  of  nations,  can  it  be  unsuccessful? 

Considering  that  science's  attempt  to  reclaim  the  rights  of 
human  individuality  resulted  in  the  memorable  proclamation  of 
the  rights  of  man  of  1789;  that  science  has  succeeded  in  framing 
legal  rules  for  the  rational  organization  of  the  family,  city  and 
state,  and  in  drawing  up  the  rules  of  political  society  now  recog- 
nized as  definite  principles  in  the  constitutions  of  all  civilized 
countries, — who  will  believe  that  modern  science  is  powerless  to 
bring  about  a  sound  organization  of  the  society  of  civilized  coun- 
tries? 

Can  it  be  conceded  that  the  present  anarchy  will  last  indef- 
initely? Can  it  be  supposed  that  science  may  not  be  able  to  fulfill 
its  mission?  Decidedly  not,  for  fortune  does  not  favor  those  who, 
discouraged  by  the  present,  lose  their  faith  in  the  future. 

The  main  difficulty  lies  in  taking  the  right  direction  and  in 
concentrating  all  intellectual  forces  upon  a  thorough  solution  of 
the  problem. 

To  determine  which  direction  to  follow  must  always  be  the 
ultimate  aim  of  science. 


CHAPTER  II 

TRUE  PURPOSE  OF  THE  SCIENCE  OF  INTERNATIONAL 
LAW.  INTERNATIONAL  RIGHTS  OF  THE  STATE, 
OF  MAN,  OF  COLLECTIVITIES— OF  THE  CHURCH 
AND  OF  UNCIVILIZED  PEOPLES 

10.  How  the  science  of  international  law  must  contribute  its  share  toward  a 
complete  solution  of  the  problem  of  the  juridical  organization  of  interna- 
tional society.  11.  Method  pursued  up  to  the  present.  12.  Necessity  of 
ascertaining  the  rights  of  all  the  members  of  that  society.  13.  Objects 
of  international  law.  14.  The  states,  man,  people,  nationalities,  Church 
and  collectivities.  15.  International  rights  appertaining  to  them.  10. 
Collectivity  as  an  object  of  international  law.  17.  Equilibrium  between 
the  Church  and  the  State.  18.  General  lines  of  the  system  best  adapted 
to  give  to  international  society  its  true  organization. 

10.  Ill  order  that  science  may  efficiently  co-operate  in  solving 
the  problem  of  the  legal  organization  of  international  society,  it 
is  indispensable  that  we  endeavor  to  fix  the  rules  governing  all  the 
relations  operating  between  the  members  of  such  society.  For  that 
purpose,  it  is  necessary  in  the  first  place  to  determine  among  which 
persons  and  individuals  these  relations  may  exist;  it  is  then  neces- 
sary to  specify  the  rights  and  duties  which  may  flow  from  such 
relations,  to  fix  the  rules  governing  them  and  to  protect  the  rights 
of  and  insure  the  observance  of  duties  by  all. 

No  association  of  free  individutils  may  be  considered  well  or- 
ganized without  a  law  establishing  a  rule  of  equilibrium  and 
certain  rules  of  proportion  both  between  what  every  one  may  do 
and  what  every  one  should  refrain  from  doing.  This  ruk^  of 
equilibrium  and  proportion  may  insure  the  rational  organization 
of  a  comnmnity,  and  should,  in  addition,  legal  means  for  protecting 
the  rights  of  all  be  provided,  it  will  be  possible  to  acquire  the  n;- 
spect  due  to  the  person  of  every  one  and  the  development  of 
freedom  in  his  relations  with  his  fellow  man. 

It  is  useless  to  plan  for  international  society  a  suitable  form  of 
organization  without  determining  the  rights  and  property  of  each 
member,  and  what  every  one  may  or  may  not  do.    So  long  as  this 

29 


30  INTERNATIONAL   LAW    CODIFIED 

law  of  proportion  is  not  found,  it  will  be  impossible  to  give  to 
international  society  a  legal  organization. 

There  are  two  great  republics.  One  has  no  limits  to  its  exten- 
sion, including  all  those  who  are  united  by  the  bonds  of  civilization. 
The  other  is  composed  of  men  united  by  civil,  social  and  political 
interests,  which  take  the  form  of  a  state.  The  principles  for  the 
legal  organization  of  either  republic  do  not  materially  differ. 

To  give  to  either  form  of  republic  a  regular  and  rational  organiza- 
tion would  require  the  adoption  of  a  system  of  juridical  equilibrium, 
that  is  to  say,  the  line  of  demarcation  between  what  every  one 
may  do  and  may  not  do.  Now,  it  seems  to  me  that  in  order  to 
work  out  the  legal  organization  of  the  great  republic,  of  the  Magna 
civitas,  the  same  method  is  required  as  that  followed  to  attain  the 
legal  organization  of  political  society. 

The  latter  was  the  final  outcome  of  the  enlightened  idea  of  politi- 
cal freedom  and  legal  equality  advocated  by  the  philosophers  and 
publicists  of  the  last  century,  which  has  inspired  the  intellectual 
movement  and  popular  aspirations  up  to  the  present,  and  in  which 
people  have  come  to  claim  the  rights  of  man  in  opposition  to 
sovereignty.  It  was  the  work  of  the  Revolution.  History  calls 
it  the  French  Revolution,  while  as  a  matter  of  fact  it  was  the 
revolution  of  the  human  mind;  it  was  the  outcome  of  the  co- 
operation of  the  intellectual  forces  of  all  countries  which,  at  the 
end  of  the  last  century,  caused  the  proclamation  of  the  rights  of 
man  in  opposition  to  sovereignty.  . 

The  declaration  of  the  rights  of  man  has  made  us  understand 
certain  rules  of  proportion  and  has  led  us  gradually  to  determine 
the  legal  equilibrium  of  the  political  society.  I  do  not  say  that 
everything  has  been  accomplished  in  a  perfect  and  thorough 
manner;  in  my  opinion,  however,  the  declaration  of  the  rights  of  , 
all  those  belonging  to  the  political  community  and  the  recognition 
of  the  rights  of  man  over  the  sovereign  make  it  possible  to  fix  the 
basis  of  the  legal  equilibrium.  This  equilibrium  is  founded  upon 
the  principle  that  within  the  state  the  sovereign  is  not  omnipotent, 
and  that,  in  opposition  to  the  absolute  power  of  the  King,  stand 
the  intangible  rights  of  man,  the  consequence  of  which  has  been 
to  oppose  the  rights  of  man  as  a  resisting  force  to  the  king's  rights, 
which  at  one  time  were  absolute.  So  one  may  determine  the  rules 
of  proportion  between  what  a  king  can  do  and  what  he  has  no 


TRUE   PURPOSE   OF   THE   SCIENCE   OF   INTERNATIONAL   LAW     31 

right  to  do.  To-day  the  work  goes  on;  the  effort  is  to  perfect  the 
principle  already  secured,  and  to  better  determine  the  rights  of 
the  individual,  of  society  and  of  the  collectivity  as  opposed  to  the 
rights  of  sovereignty.  The  work  is  always  aiming  to  perfect  itself, 
to  develop,  and  to  better  determine  the  rights  of  every  one,  with  a 
view  better  to  fix  and  determine  the  fields  of  freedom,  and  to 
establish  more  surely  a  proper  balance. 

In  international  society,  disorder,  confusion,  and  lack  of  juridical 
organization  are  caused  by  the  fact  that  thus  far  the  idea  has  been, 
first,  to  recognize  the  rights  of  dynasties  and  then,  the  rights  of 
states,  as  if  international  society  was  only  composed  of  the  states 
and  governments  represented  by  those  rights;  as  if  outside  of  the 
state  no  one  could  be  entitled  to  have  and  enjoy  international 
rights.  Hence  the  result  that  the  state  considers  itself  as  omnipo- 
tent, that  political  considerations  outweigh  law  and  that  the  per- 
sonal and  temporary  interests  of  rulers  prevail  over  the  general 
interests  and  requirements  of  those  who  belong  to  the  international 
society.  Finally,  owing  to  the  lack  of  secure  legal  rules,  arbitrari- 
ness has  sometimes  had  a  greater  power  and  has  relied  on  military 
force,  which  has  come  effectively  to  predominate  over  the  world. 

Should  one  wish  to  remedy  this  abnormal  situation  and  the  con- 
fusion resulting  therefrom,  it  will  become  necessary  to  resist  the 
omnipotent  force  of  politics  and  arbitrariness.  And  to  that  end, 
it  would  be  indispensable,  in  my  opinion,  to  specify  and  vindicate 
the  international  rights  appertaining  to  all  those  constituting  the 
international  society,  and  to  enlarge  the  enlightened  concept  of 
juridical  freedom  and  equality,  acknowledging  the  fact  that  the 
latter  are  not  territorial  rights,  but  properly  international  rights. 

The  question  should  be  considered  in  its  broad  aspect,  not  from 
the  restricted  point  of  view  of  each  single  country  and  each  single 
political  community.  It  is  necessary  to  concede  more  freedom  and 
legal  equality  and  to  extend  the  benefit  thereof  to  all  the  countries 
of  the  world.  Freedom  and  legal  equality  should  be  recognized  as 
international  rights  appertaining  to  that  great  republic  constituted 
by  mankind  which  I  call  Magna  civitas. 

We  should  determine  and  vindicate,  in  my  opinion,  the  inter- 
national rights  of  man,  of  the  people,  of  nationality,  of  the  Church 
and  of  other  forms  of  society.  We  should  also  vindicate  the  in- 
ternational rights  of  uncivilized  nations. 


32  INTERNATIONAL   LAW    CODIFIED 

11.  It  seems  to  us  that  publicists  have  gone  astray  when  de- 
scribing international  society  as  the  result  of  the  union  of  states 
such  as  they  are  and  such  as  historical  events  have  made  them, 
and  when  teaching  that  the  sole  purpose  of  the  science  of  inter- 
national law  was  the  examination  of  the  rules  designed  to  proclaim, 
determine  and  protect  the  rights  of  constituent  states.  According 
to  them,  it  should  be  assumed  that  international  society  is  com- 
posed of  states  only,  that  no  relations  can  exist  and  be  developed 
except  between  states,  and  that,  consequently,  the  law  by  which 
such  society  is  to  be  governed  can  only  concern  states. 

As  a  matter  of  fact,  in  the  great  society  of  societies,  which  we 
name  Magna  civitas,  we  first  found  man  with  his  personality  and 
the  rights  which  are  his  as  a  man,  independently  of  his  status  as 
a  citizen  of  a  state. 

Could  it  by  any  chance  be  conceived  that  man,  as  regards 
mankind  and  the  law  which  must  govern  mankind,  might  lose  his 
individuality,  in  the  same  manner  as  a  drop  of  water  falls  into  the 
sea?  Certainly  not.  Man  is  entitled  to  rights  of  his  own  in  his 
intercourse  with  other  men  and  within  the  sphere  of  private  re- 
lations; he  has  his  own  rights  in  his  relations  with  the  state,  that 
is  to  say,  within  the  domain  of  public  and  political  relations;  he 
enjoys,  furthermore,  rights  of  his  own  in  his  relations  with  all  his 
fellow-beings  and  all  the  states  of  the  world. 

A  consequence  of  his  personality  is  to  endow  him  with  civil 
and  political,  as  well  as  international  rights,  for  it  is  man's  princi- 
pal and  essentially  personal  right,  in  relation  with  all  the  states  of 
the  world,  freely  to  belong  to  any  state.  He  may,  consequently 
choose  his  nationality  and  renounce  the  one  already  his  in  order 
to  acquire  a  new  one. 

He  enjoys,  besides,  the  right  to  personal  inviolability  and  liberty; 
he  has  the  right  to  acquire  property  anywhere  and  to  require  the 
respect  thereof;  he  is  entitled  to  freedom  of  conscience,  to  the  free 
exercise  of  his  activities,  to  the  free  exercise  of  international  trade. 
Are  those  rights  in  any  respect  rights  belonging  to  man  as  the 
citizen  of  a  particular  state,  or  are  they  international  rights  ap- 
pertaining to  man  as  such?  In  our  opinion  they  unquestionably 
belong  to  the  human  personality,  independently  of  the  bond  unit- 
ing every  one,  as  a  citizen,  to  some  given  country. 

12.  Now,  is  it  not  for  science^  whose  aim  should  be  to  eliminate 


TRUE  PURPOSE  OF  THE  SCIENCE  OF  INTERNATIONAL  LAW  33 

absolutism  and  the  preponderance  of  force,  to  attempt  to  determine 
the  rights  of  the  people  in  relation  to  states  and  governments,  and 
to  fix  the  rules  governing  them,  as  well  as  the  measures  of  legal 
protection  designed  to  guarantee  and  safeguard  such  rights? 

Another  form  of  union  existing  in  international  society  is  the 
union  arising  out  of  the  natural  affinities  of  individuals,  whose 
community  of  views  and  tendency  to  associate  with  one  another 
are  due  to  a  similarity  of  race,  language,  traditions,  aspirations, 
and  to  an  ensemble  of  ethnographical,  geographical  and  moral 
considerations.  This  is  what  constitutes  nationality.  The  senti- 
ment of  moral  unity  animating  men  of  the  same  race,  speaking 
the  same  language,  having  for  centuries  experienced  the  same 
events,  shared  the  same  joys  and  the  same  sorrows,  having  always 
had  the  same  aspirations — that  is  the  origin  of  nationality,  upon 
which  peculiar  and  special  rights  are  based. 

An  association  equally  important  is  that  derived  from  the  free- 
dom of  conscience.  A  more  or  less  considerable  number  of  individ- 
uals, of  the  same  faith,  and  observing  the  same  religious  law,  form 
a  de  facto  society  and  freely  acknowledge  the  authority  of  a  chief: 
this  association  is  the  Church. 

It  cannot  be  denied  that  the  Church  is  a  natural  society,  the 
result  of  freedom,  as  all  those  professing  the  same  faith  may  freely 
form  a  spiritual  association  and  submit  to  the  authority  of  a  su- 
preme chief  who,  without  using  any  coercive  means  exercises  over 
them  his  moral  authority. 

Consequently  churches  also  are  part  of  international  society, 
and  among  them  the  first  place  belongs  to  the  Roman  Catholic 
Church,  cemented  by  an  existence  of  twenty  centuries  and  pre- 
served by  the  most  compact  and  powerful  hierarchy  in  the 
world. 

The  Catholic  Church  carries  on  relations  with  all  the  states  of 
the  world  and  from  these  relations  are  derived  certain  rights  and 
duties  affecting  not  only  the  public  law  of  each  country,  but  also, 
to  some  degree,  international  society  as  well.  Should  not  the 
science  of  international  law,  which  purposes  to  establish  rules  of 
proportion  between  all  the  individuals  and  collectivities  constitut- 
ing mankind,  take  up  the  problem  of  solving  the  situation  of  the 
Church  towards  States?  This  is  a  thing  that  international  law 
must  do  in  order  that  none  of  the  elements  which  are  to  constitute 


34  INTERNATIONAL   LAW   CODIFIED 

the  object  of  the  search  for  the  rules  of  proportion  or  proper 
balance  may  be  overlooked. 

There  are  other  forms  of  association,  less  important  than 
churches,  that  must  be  taken  into  account:  human  associations, 
which,  although  not  enjoying  a  perfect  political  organization,  form 
a  union  under  the  authority  of  a  chief,  as  represented  by  tribes 
or  other  analogous  aggregations. 

Can  barbarous  tribes,  whatever  their  degree  of  culture,  be  de- 
nied the  capacity  of  being  considered  subject  to  international  law? 

Supposing  even  that  they  lack  all  political  organization  and 
that  they  live  their  own  life  upon  the  territory  they  occupy,  could 
the  application  of  international  law  be  refused  to  them  in  so  far 
as  it  must  protec't  the  rights  of  the  human  personality? 

One  may  say  of  those  tribes  that,  while  acknowledging  the 
authority  of  a  chief,  they  cannot  be  placed  on  the  same  footing  of 
equality  as  the  other  members  of  the  Magna  civitas.  One  could 
not,  however,  refuse  to  apply  international  law  to  them  as  a  means 
of  regulating  de  facto  relations  which  may  be  established  between 
them  and  civilized  states.  One  could  not  admit  of  a  legal  equality 
between  such  tribes  and  states,  even  by  limiting  it  to  the  enjoy- 
ment of  the  rights  which  properly  are  theirs,  because  the  necessary 
basis  for  such  equality  is  a  certain  uniformity  in  regard  to  funda- 
mental notions  of  law,  which  are  indispensable  for  the  legal  com- 
munity. It  must  be  owned,  however,  that  neither  a  barbarous 
nation  nor  an  uncivilized  tribe  may  be  left  outside  the  law  of 
humanity. 

There  are  also  associations  created  for  an  international  purpose 
which,  after  being  recognized  as  such  by  states,  may  exercise  their 
activity  in  the  international  world.  In  the  enjoyment  of  the 
international  rights  that  are  theirs,  they  must  likewise  be  governed 
by  international  law.^ 

^  Certain  forms  of  societies — (the  result  of  freedom  of  association  for  a 
common  interest) — are  formed  within  a  state.  These  societies  are  endowed 
with  a  legal  personality,  when  the  sovereignty  of  such  state,  by  reason  of 
their  public  interest,  has  given  them  such  personality  and  the  power  to  ex- 
ercise rights  appropriate  to  that  end.  These  associations,  however,  may  not  as 
of  right  exercise  their  functions  in  foreign  countries,  as  the  sovereignty  of  each 
state  may  recognize  juridical  persons  and  grant  them  the  capacity  for  certain 
acts  only  within  the  limits  of  the  territory  over  which  it  commands.  General 
interest  may  require  certain  associations  to  extend  their  sphere  of  action  be- 
3'ond  their  boundaries,  but  this  may  not  take  place  as  of  right,  as  the  previous 


TRUE    PURPOSK    OF    THE    SCIENCE   OF    INTERNATIONAL    LAW     35 

13.  Now  in  order  properly  to  fulfill  its  task,  science  must  not 
be  content  to  determine  the  rules  governing  the  relations  between 
established  states;  it  nmst  also  fix  the  rules  governing  all  the  rela- 
tions of  fact  and  law  existing  between  all  the  individuals  and  en- 
tities belonging  to  the  international  society. 

Whether  these  relations  exist  between  states,  or  individuals  and 
states,  or  collectivities  of  individuals  and  states,  and  when,  bj^ 
reason  of  their  nature,  purpose  or  development,  they  can  not  be 
considered  merely  as  relations  of  territorial  interest,  science  must 
take  cognizance  of  theuL 

That  is  why  we  assign  to  the  science  of  international  law  a 
much  more  lofty  and  wider  object  than  had  at  first  been  ascribed 
to  it.  We  would  even  change  its  name  if  it  were  possible,  so  as 
to  better  express  its  purpose.  International  law  means  law  between 
nations,  law  between  states.  The  expression  Droit  des  gens  (Law 
of  nations)  is  indeed  a  better  one;  but,  in  order  more  completely 
to  indicate  the  object  of  the  science,  it  would  be  still  better  to 
employ  the  expression  Law  of  mankind,  which  well  describes  the 
great  republic  composed  of  all  beings  considered  either  individ- 
ually or  as  groups  of  individuals. 

In  our  opinion,  the  object  of  international  law  should  be  to 
investigate  and  determine  the  international  rights  and  reciprocal 
duties  which  must  belong  to  every  member  of  such  society,  and 
to  fix  the  legal  rules  governing  such  rights  and  duties  and  the  legal 
measures  designed  to  protect  their  fulfillment.  For  that  purpose 
it  is  necessary  to  determine  first  of  all  which  are  the  persons  and 
subjects  enjoying  such  rights  and  which  may  lay  claim  to  them. 

14.  I  believe  that  one  should  consider  as  a  person  of  interna- 
tional society  every  being  and  institution  having  individuality  by 
virtue  of  their  own  right,  and  capable  of  exercising  their  functions 
in  all  parts  of  the  world.  Individuality  constitutes  always  the 
essential  characteristic  of  every  person.    But,  in  order  to  possess 

authorization  of  the  foreign  sovereign,  given  as  a  recognition  or  otherwise, 
must  always  be  considered  indispensable. 

All  that  we  have  said  about  the  international  rights  of  collectivities  applies 
to  collectivities  existing  jure  suo,  that  is  to  say,  those  whose  existence  is  a 
natural  fact,  or  the  result  of  natural  factors;  that  is,  those  which  must  be 
considered  as  existing  independently  of  territorial  law,  such,  for  example,  as 
a  nalion,  or  people,  and  the  association  resulting  from  the  unity  of  religious 
belief. 


36  INTERNATIONAL  LAW   CODIFIED 

personality  in  international  society,  it  is  necessary  that  a  being  be 
possessed  of  individuality  in  his  own  right,  and  not  by  virtue  of 
some  form  of  concession  on  the  part  of  the  territorial  sovereign. 

When  individualit}^  is  the  result  of  an  act  of  the  territorial 
sovereign,  it  maj^  be  sufficient  to  cause  the  legal  entity  or  institu- 
tion to  be  considered  as  a  person  within  the  limits  of  the  territory 
of  the  granting  sovereign. 

Consequently,  we  recognize  the  existence  in  international  so- 
ciety of  three  persons:  the  state,  man,  and  the  Roman  Catholic 
Church,  As  to  the  state,  its  personality  can  not  be  questioned,  as 
every  one  admits  that,  as  soon  as  constituted,  it  is  jure  suo  a  person 
of  the  Magna  civitas. 

The  point  as  to  whether  man  should  be  considered  as  a  person 
of  the  international  society  is  one  that  may  be  questioned.  There 
is  no  doubt  that  man  is  a  person  in  his  relations  with  civil  and 
political  society.  But  that  he  should  be  considered  as  a  person 
of  international  society,  may,  at  first,  be  disputed. 

For  my  part,  I  certainly  do  not  contend  that  man  is  a  person  of 
international  society  in  the  same  manner  as  the  state,  and  that  he 
may  acquire  and  exercise  the  rights  belonging  to  the  state,  or  to 
contract  and  execute  international  obligations  in  the  same  manner 
as  a  government.  I  claim  onl}^  that  man,  by  the  fact  that  he  exists 
as  such,  exists  with  the  personality  which  is  his  jure  suo;  that  he 
exists  with  his  freedom  and  capacity  to  exercise  his  activity  not 
only  as  a  citizen,  in  his  relations  with  the  government  of  the  state 
to  which  he  belongs,  but  also  with  respect  to  all  the  world's  gov- 
ernments, and  that  he  may  claim  from  all  the  respect  of  his  per- 
sonality and  the  rights  which  are  his,  not  as  a  citizen,  but  as  a 
man.  The  personality  jure  siio  is  possessed  in  the  first  place  b}^ 
man  considered  in  the  civil  and  political  society  arising  out  of  the 
state  of  which  he  is  a  citizen;  but  it  must  be  conceded,  furthermore, 
that  man  is  to  be  considered  jure  suo  as  a  person,  with  rights  pro- 
tecting his  personality,  in  the  eyes  of  all  the  states  of  the  world. 

The  difficulty  is  greater  when  it  comes  to  considering  the  Church 
as  a  person  of  the  Magna  civitas.  In  order  to  avoid  any  misunder- 
standing, I  wish  it  to  be  understood  that  my  argument  refers  to  all 
churches.  But  it  is  important  to  consider  that  they  have  not  all 
in  fact  acquired  the  position  of  a  true  international  institution.  At 
the  present  time,  the  Roman  Catholic  Church  is  the  only  true 


TRUE  PURPOSE  OF  THE  SCIENCE  OF  INTERNATIONAL  LAW  37 

international  institution.  It  possesses,  as  otiier  churches,  not  only 
its  own  individuality  jure  suo,  but  besides,  an  international  or- 
ganization of  its  own;  it  exercises  its  own  rights  and  its  activity 
extends  over  all  the  world.  Other  churches  may  also  undoubtedly 
acquire  some  day  the  position  of  an  international  institution;  and 
in  such  case,  all  my  remarks  may  apply  to  any  church  actually 
enjoying  such  situation.  But,  as  I  have  said,  the  position  of  a  true 
international  institution  belongs  at  this  time  perforce  to  the 
Roman  Catholic  Church.  And  for  that  reason,  acknowledging 
it  to  be  in  fact  an  international  institution  and  considering  that 
its  personahty  (that  is,  its  individuality  as  such)  is  its  own  as  of 
right,  jure  suo,  I  maintain  that  it  must  be  considered  as  an  inter- 
national entity,^ 

'  The  notion  of  international  personality,  such  as  I  understand  it,  should 
not  be  confused  with  the  notion  of  legal  personality.  In  my  opinion  in- 
ternational personality  belongs  to  an}'  individual  and  institution  enjoying 
de  jure  an  individuality  of  its  own  and  possessing  jure  suo  the  capacity  to 
develop  its  activity  in  the  field  of  international  societ}'  in  conformity  with  the 
rules  governing  such  society.  It  does  not  follow  that  any  individual  or  in- 
stitution may  claim  international  personality  and  enjoyment  of  the  rights 
which  (taking  always  into  account,  of  course,  their  nature  and  purpose)  are 
theirs  in  the  international  society,  and  which  constitute  their  international 
rights. 

Legal  personality,  on  the  contrary,  may  belong  to  any  collectivity  not 
enjoying  an  individuality  of  its  own  de  jure,  but  to  which  the  sovereign  power 
has  granted  such  individuality,  while  at  the  same  time  conferring  upon  it  the 
enjoyment  of  certain  rights. 

Considering  this  as  a  thing  substantially  different  from  the  other,  it  will 
readily  be  seen  why,  while  granting  to  the  Church  an  international  personal- 
ity, I  do  not  go  so  far  as  to  admit  that  it  may  claim  to  be  considered  de  jure 
as  an  international  legal  entity. 

Xor  have  I  ever  thought  that  the  Church  may  be  deemed  jwre  suo  an  inter- 
national legal  entity,  which  would  imply  the  acknowledgment  that  it  may 
de  jure  claim  the  capacity  to  exercise  property  rights.  As  a  matter  of  fact 
such  capacity  does  not  belong  to  the  Church  as  an  international  institution, 
because,  considering  its  nature  and  purpose,  the  enjoyment  of  property  rights 
is  not  indispensable  to  it.  And  consequently,  no  Church,  not  even  the 
Catholic  Church,  may  be  deemed  a  legal  entity  unless  such  condition  be 
granted  by  the  sovereign  power  of  the  state  conformably  to  territorial  law. 
(See  the  first  edition  of  the  present  work  translated  by  Chr6tien,  rules  31,  441, 
442,  456,  4G4  and  4G6,  and  Diritto  internazionale  pubhlicn,  3rd  ed.,  Torino, 
1887:  Dei  diritli  internazionale  della  Chiesa,  pp.  485  et  seq.) 

The  State  alone  is  de  jure  an  international  entity,  and  an  international  legal 
entity  possessing  legal  capacity  and  the  enjoyment  of  property  rights  belong- 
ing to  it  as  a  State,  such  enjoyment  being  indispensable  in  order  that  the 
State  may  subsist  as  such  and  pursue  the  object  for  which  it  was  created. 
(See  my  opinion  {conaullo)  on  the;  differences  between  Greece  and  Rumania 


114831 


38  INTERNATIONAL  LAW   CODIFIED 

Two  iDstitutions  among  mankind,  the  State  and  the  Church,  are 
of  a  nature  fundamentally  different. 

The  State  is  a  political  institution  owing  its  existence  to  political 
freedom  and  possessing  its  own  power  to  govern  all  the  relations 
which  arise  and  develop  within  the  field  of  national,  civil  and 
social  interests. 

The  Church  is  an  ethical  institution,  arising  out  of  freedom  of 
conscience  and  existing  by  reason  of  a  religious  sentiment.  It 
is  organized  under  the  authority  of  a  chief  whose  sole  power  is  to 
maintain  the  principles  of  faith  and  to  proclaim  the  dogma  for 
those  who  wish  freely  and  spontaneously  to  accede  to  it.  He  ex- 
ercises his  functions  over  the  soul  and  within  the  field  of  conscience. 

For  my  part,  accepting  things  in  this  world  as  God,  history, 
and  freedom  have  made  them,  I  dare  not  disregard  historical 
facts.  I  find,  in  the  international  society,  the  existence  of  man 
endowed  with  a  personality  which  is  his  jure  suo.  I  establish  the 
existence  of  the  state,  which,  once  constituted  by  virtue  of  the 
political  freedom  of  associates,  possesses  a  personality  of  its  own 
ipso  jure  ipsoque  facto.  I  establish  the  existence  of  the  Church 
organized  under  the  form  of  an  international  institution.  These 
are  three  personalities,  each  one  of  which  is  of  a  different  nature  and 
legal  condition. 

Is  the  capacity  of  being  a  subject  of  international  law  the  ex- 
clusive privilege  of  the  State?  Are  there  not,  in  international 
society,  other  entities  entitled  to  international  rights? 

Admitting  that  no  one  may  claim  the  international  rights  of 
the  State  and  that  therefore  no  one  may  enjoy,  as  a  subject  of 
international  law,  the  same  capacity  as  the  State,  how  may  one 
absolutely  deny  to  other  individualities,  which  effectively  belong 
to  international  society,  the  right  to  claim  their  own  international 
rights  and  to  consider  themselves  as  entitled  to  enjoy  them? 

Publicists,  by  wrongly  teaching  that  only  the  State  is  a  person, 
and  that,  consequently,  man  has  no  right  to  an  international 
personality,  have  encouraged  the  unfortunate  error  that  the  rights 
of  man,  the  rights  of  human  personality,  exist  only  so  far  as  inter- 
relative  to  the  Zappa  inheritance,  and  my  pamphlet  Delia  personalitd,  giuridica 
dei  Corpi  morali  e  della  Personalild  giuridica  dello  Stato  all'  interno  ed  all' 
estero.  Torino,  Unione  Tipografico-Editrice,  1895;  and  Tratado  de  derecho 
internacional  publico,  2a  edicion,  1894,  vol.  I,  chapter  VII,  De  la  personalidad 
ciinl  del  Estado.) 


TRUE  PURPOSE  OF  THE  SCIENCE  OF  INTERNATIONAL  LAW  30 

national  public  law  is  concerned,  and  that  a  foreigner,  in  so  fai* 
as  his  private  and  civil  rights  are  concerned,  may  be  deemed 
outside  of  "common"  law. 

This  same  false  theory,  namely,  that  only  the  State  is  an  inter- 
national person  and  that  it  alone  is  entitled  to  enjoy  international 
rights,  has  also  had  as  a  result  the  raising  of  the  "  Roman  question. " 

The  partisans  of  the  Pope's  rights,  in  view  of  this  theory  that 
the  State  alone  should  have  an  international  personality,  held 
that  the  temporal  power  of  the  Papacy  was  indispensable  to 
secure  the  respect  of  its  rights.  They  alleged  that  the  Roman 
Catholic  Church  exercises  certain  international  rights  and  main- 
tains certain  international  relations;  its  head  exercises  the  right 
of  legation,  and  may  conclude  concordats.  If  it  is  granted  that 
the  State  alone  may  be  an  international  person,  it  appears  nat- 
ural for  the  Pope's  partisans  to  maintain  that,  for  the  regular 
and  safe  exercise  of  the  Pope's  functions  as  head  of  the  Church, 
and  in  order  to  secure  complete  guaranties,  the  Church  must 
have  a  form  of  political  organization  as  a  state,  and  the  Pope, 
as  head  of  the  Church,  must  be  given  territorial  possessions  and 
temporal  power. 

Thus,  by  an  error,  have  publicists  encouraged  the  Pope's  claims, 
their  theory  going  so  far  as  almost  to  justify  the  remarkable 
sophism  of  the  Papacy  and  of  its  partisans  as  to  the  Pope's  alleged 
necessity  for  temporal  power  and  political  sovereignty. 

Should  one  wish  to  establish  the  true  political  equilibrium 
all  facts  must  be  viewed  in  their  true  light;  every  one  must  be 
granted  what  is  his,  but  denied  also  what  is  not  his.  This  explains 
my  theor3^  The  precept  of  the  Romans,  unicuique  suum,  has  been 
my  in.spiration. 

15.  What  are  the  international  rights  to  which  every  one  is 
entitled?  And  how,  in  accordance  with  the  declaration  of  the 
rights  that  every  one  expects,  shall  the  political  equilibrium  be 
effected? 

This  is  not  the  time  to  set  forth  at  length  the  international 
rights  of  the  State,  man,  the  Church,  corporations,  associations, 
nomads  and  barbarians,  as  this  question  will  later  constitute  tho 
object  of  our  study.  It  will  suffice  for  the  present  to  insist  on  the 
fundamental  point,  namely,  that  in  order  to  effect  a  legal  (Hiuilib- 
rium  it  is  absolutely  necessary  that  the  legal  limitations  upon  the 


40  INTERNATIONAL   LAW    CODIFIED 

activity  of  every  one  be  determined,  and  that,  for  this  purpose,  it 
is  important  to  ascertain  and  recognize  the  international  rights 
of  all  persons  and  bodies,  of  the  State,  man,  associations  or  collec- 
tivities, and  of  civilized  and  uncivilized  peoples.  After  these  shall 
have  been  determined,  it  will  be  necessary  also  to  recognize  that 
the  liberty  which  any  state  may  possess  in  its  relations  with  other 
states  and  collectivities,  cannot  exist,  except  in  the  power  to  exer- 
cise their  proper  rights  and  activity,  without  invading  the  legal 
sphere  of  the  rights  of  others. 

The  international  rights  of  the  State,  it  is  generally  agreed,  are 
rights  of  autonomy  and  independence,  of  sovereignty  and  jurisdic- 
tion, of  equality,  of  eminent  domain  and  of  representation.  These 
rights,  it  is  also  said,  should  be  considered  as  absolute.  But  as  it  is 
not  admitted  that  international  rights  likewise  belong  to  man  and 
to  collectivities  and  that  such  rights  ought  to  be  considered  in- 
tangible, the  result  is  that  arbitrariness  prevails  in  international 
society.  The  right  of  autonomy  of  the  State,  in  fact,  justifies 
everything,  and  in  order  that  they  may  support  any  claim  they 
may  assert,  states  are  endeavoring  unceasingly  to  increase  their 
military  strength. 

To  oppose  a  legal  power  to  the  omnipotent  power  of  arbitrariness 
would  call  for  a  recognition  of  the  international  rights  of  man  and 
of  entities  or  collectivities. 

Man's  rights  comprise  the  rights  of  freedom  and  of  personal 
inviolability,  the  right  of  choosing  his  citizenship,  renouncing 
the  one  he  has  acquired  and  of  choosing  a  new  one,  the  right  to  own 
property,  of  liberty  of  conscience,  of  free  activity  and  interna- 
tional trade,  and  the  right  of  emigration.  These  are  the  interna- 
tional rights  of  the  human  being.  ^ 

1  In  addition  to  the  international  rights  pertaining  to  every  one  as  a  vian, 
we  recognize  likewise  in  everyone  the  international  rights  to  which  he  is  en- 
titled as  a  citizen. 

And,  as  a  matter  of  fact,  their  status  as  citizens  of  a  state  constitutes 
the  basis  of  civil  and  of  political  rights,  and  of  certain  international  rights. 
Civil  rights  find  their  true  foundation  in  the  laws  of  every  country,  which 
determine,  regulate  and  protect  certain  rights,  the  enjoyment  of  which  is 
exclusively  reserved  to  the  citizens  of  the  state.  Political  rights  find  their 
true  foundation  in  the  constitution  of  each  individual  state.  The  international 
rights  of  man  as  a  citizen  rest  upon  the  treaties  concluded  between  the  state 
of  which  he  is  a  citizen  and  other  states. 

Any  person  who  belongs  to  a  state  as  a  citizen  has  a  right,  in  the  first  place, 
to  claim  the  protection  of  the  sovereign  and  government  of  his  country  against 


TRUE    PURPOSE    OF   THE   SCIENCE    OF    INTERNATIONAL    LAW     41 

Whatever  his  race  and  degree  of  culture,  whether  he  lives  in  polit- 
ical association  or  leads  a  nomadic  existence,  man  never  loses  the 
characteristics  and  attributes  of  human  nature  and  consequently 
never  loses  the  rights  which,  always  and  everywhere,  must  pertain 
to  the  human  personality.  Therefore,  it  should  be  recognized  that 
he  may  claim  such  rights  all  over  the  world,  demand  respect  for 
them  and  enjoy  them  in  every  country,  on  the  sole  condition  of 
recognizing  the  authority  of  territorial  laws  and  complying  with 
the  provisions  thereof. 

Collectivities  are  merely  aggregations  of  persons  united  by  a 
common  bond  and  a  common  interest.  Naturally  they  enjoy  their 
own  international  rights,  the  same  as  do  the  individuals  constitut- 
ing them. 

One  cannot  deny  to  nations  their  own  international  rights, 
the  more  important  of  which  are  the  liberty  to  establish  and 
modify  their  own  political  constitution,  the  right  to  adopt  the 
government  which  they  think  may  best  secure  the  rights  of  the 
political  association  and  the  right  to  expect  that,  once  established, 
the  government  will  be  recognized  by  other  states  as  a  legiti- 
mate one  as  soon  as  it  is  effectively  in  possession  of  rights  of 
sovereignty. 

Nationalities,  likewise,  have  their  own  rights,  the  principal  of 
which  is  that  of  not  being  constrained  to  remain  in  this  or  that 
political  association,  but  of  being  able  in  all  freedom  to  unite  in 
accordance  with  their  natural  aspirations  and  affinities. 

I  have  spoken  previously  of  the  Churches  and  other  collectivi- 
ties. Let  us  see  now  what  may  be  inferred  from  the  facts  already 
set  forth. 

That  every  state  as  well  as  the  government  which  represents  it 
should  possess  both  autonomy  and  independence,  must  surely  be 
admitted.    But  what  is  to  be  the  nature  of  such  autonomy  and  in- 

any  state  or  government  attempting  arbitrarily  to  violate  the  rights  which, 
according  to  international  law,  are  his. 

But  in  addition  to  this  any  individual  who  is  a  citizen  of  a  state  may,  in 
the  pursuit  of  his  business  and  activity  abroad,  claim  and  obtain  the  enjoy- 
ment of  any  private  right,  faculty,  advantage,  and  privilege  granted  to  the 
respective  citizens  by  treaties  concluded  between  state  and  state.  Upon 
commercial  treaties,  consular  conventions  and  those  relating  to  the  protection 
of  literary,  artistic  and  industrial  property  and  many  others,  are  founded 
special  rights  which  may  bo  enjoyed  only  by  those  who,  as  citizens,  belong  to 
the  states  which  have  concluded  such  treaties. 


42  INTERNATIONAL   LAW    CODIFIED 

dependence?  Can  one  speak  of  the  autonomy  and  independence 
of  arbitrary  power?    Certainly  not. 

The  just  hmit  of  a  power  lies  in  due  regard  for  the  international 
rights  of  other  members  of  the  international  society. 

A  sovereign  may  properly  claim  only  the  liberty  and  independ- 
ence compatible  with  the  requirements  of  international  society. 
For  that  reason,  he  must  so  exercise  his  powers  as  not  to  violate 
the  rights  and  legitimate  interests  of  other  governments,  nor  in- 
fringe the  international  rights  of  man  or  of  the  community,  or 
the  general  requirements  of  international  society. 

Autonomy  cannot,  to  be  sure,  be  absolute,  to  the  exclusive 
advantage  of  the  State.  In  the  international  society,  there  are 
other  individualities  also  invested  with  international  rights.  Now, 
it  is  quite  evident  that  the  preservation  of  the  principle  of  equilib- 
rium and  the  rule  of  just  proportion  requires  that  the  autonomy 
of  the  State  be  consistent  with  a  due  regard  for  the  rights  of 
others. 

From  the  principles  above  posited  it  follows  that  a  state  can 
neither  prevent  foreigners  from  entering  its  territory,  nor  subject 
them  to  vexatious  measures.  Neither  can  it  expel  them  without 
sufficient  reason.  It  cannot  forbid  its  citizens  to  renounce  their 
citizenship  in  order  to  acquire  another.  It  cannot  subordinate 
the  right  of  renouncing  original  citizenship  to  the  necessity  of 
previous  authorization. 

There  is  no  doubt  that  a  sovereign  right  over  its  territory  inheres 
in  every  state;  but  from  this  it  must  not  be  inferred  that  the  state, 
as  a  consequence  of  its  right  of  sovereignty,  may  deny  to  a  foreigner 
the  privilege  of  acquiring  and  devising  property,  subject  to  the 
regulations  prescribed  by  territorial  law. 

The  State  cannot,  by  reason  of  its  autonomy,  deny  to  a  for- 
eigner the  power  to  acquire,  within  the  territory  of  the  State,  any 
movable  or  immovable  property  on  the  same  conditions  as  citi- 
zens, or  deny  them  the  enjoyment  of  the  particular  rights  com- 
prised within  the  general  right  of  property.  Such  a  measure 
could  not  be  legitimate  unless,  on  serious  grounds  of  public  policy 
or  social  welfare,  the  ownership  of  certain  specific  things  should  be 
exclusively  reserved  to  citizens. 

He  who  agrees  with  my  theory  relative  to  the  international 
rights  of  man  will  consider  in  quite  a  different  light  the  problem 


TRUE    PURPOSE    OF   THE    SCIENCE    OF   INTERNATIONAL   LAW     43 

whose  solution  is  the  object  of  private  international  law  and  is 
concerned  uith  the  authority  of  foreign  laws. 

As  a  matter  of  principle,  it  must  first  be  admitted  that  the  enjoy- 
ment of  civil  rights  by  foreigners  cannot  be  deemed  a  gracious 
concession  depending  upon  the  arbitrary  power  of  any  state; 
it  is  properly  to  be  considered  as  the  legal  recognition  of  the  in- 
ternational rights  of  man. 

We  must  acknowledge,  furthermore,  that  any  person  has  the 
right  not  only  to  select  the  state  to  which  he  wishes  to  swear  alle- 
giance, but  that  he  is  also  entitled  to  claim  that  the  law  of  the  state 
to  which  he  belongs,  upon  which  his  legal  condition  and  civil  rights 
depend,  as  well  as  his  personal  and  family  status  and  the  private 
rights  derived  therefrom,  be  recognized  in  foreign  countries,  and 
that  it  be  app'ed  to  such  relations,  provided  that  the  application 
of  such  law  be  not  detrimental  to  the  territorial  public  law  nor 
to  the  laws  governing  public  policy  and  protecting  the  social 
order. 

Thus,  we  cannot  support  the  opinion  expressed  by  Fcelix, 
namely,  that  "in  admitting  the  application  of  foreign  laws,  legis- 
lators, public  authorities,  courts  and  writers  have  been  guided 
not  by  an  obligation,  whose  observance  may  be  claimed,  but 
solely  by  considerations  of  reciprocal  utility  and  convenience, 
ex  comitate  et  reciprocam  utilitatem."  ^ 

Instead  of  admitting  that  no  state  possesses  an  absolute  and  un- 
limited discretionary  power  to  grant  or  deny  recognition  of  the 
enjo>Tnent  of  the  civil  rights  of  foreigners  or  to  subordinate  them 
to  the  condition  of  reciprocity,  as  it  pleases,  one  should  consider 
the  denial  to  a  foreigner  of  the  right  to  demand  the  application 
of  his  personal  statute  as  an  actual  violation  of  the  international 
rights  of  man. 

Therefore,  one  must  also  admit  that  no  state  can,  as  a  conse- 
quence of  its  autonomy,  justify  legal  reprisals  founded  upon  the 
rule  of  reciprocity. 

In  short,  remembering  that  neither  the  territorial  or  extra- 
territorial authority  of  a  law  is  exclusively  dependent  on  auton- 
omy, but  properly  requires  to  be  determined,  taking  into  account 
the  international  rights  of  man,  the  nature  of  each  separate  rela- 

'  Preliminary  titl("  of  his  Traltato  di  Diritlo  internazionale  privato,  chap.  Ill, 
no.  II. 


44  INTERNATIONAL   LAW    CODIFIED 

tion  and  social  as  well  as  international  interests,  the  problem  of 
[)rivate  international  law  may  be  successfully  placed  on  its  true 
legal  basis.  Thus,  it  has  in  fact  come  to  recognize  the  rational 
domain  of  every  law,  based  upon  the  legislative  competence  of 
every  state,  and  to  submit  every  relation  to  the  law  governing  it, 
according  to  the  nature  of  the  relation  itself  and  to  the  principles 
of  legislative  competence,  within  the  just  limitations  which,  in 
the  application  of  foreign  laws,  the  political  and  social  interests 
asserting  themselves  in  every  state  impose.^ 

16.  Let  us  briefly  point  out  a  few  of  the  consequences  which, 
from  the  point  of  view  of  legal  equilibrium,  arise  out  of  the  recog- 
nition of  the  international  rights  of  collectivities. 

Because  a  nation  has  a  right  to  adopt  and  amend  its  own  po- 
litical constitution,  it  necessarily  follows  that  states  and  govern- 
ments have  no  right  to  interfere  in  the  internal  affairs  of  a  foreign 
country,  in  order  to  prevent  or  hinder  the  free  exercise  of  the  in- 
ternational rights  belonging  to  the  people.  Any  form  of  either 
armed  or  moral  intervention  should  likewise  be  considered  as 
absolutely  unlawful  and  arbitrary.  Neither  can  the  intervention 
designed  to  prevent  a  people  from  modifying  the  political  constitu- 
tion of  the  state  and  the  form  of  government  be  justified  upon  the 
ground  that  the  protection  of  the  general  interest  required  such 
intervention. 

The  collective  intervention  of  the  Great  Powers,  in  order  to 
maintain  a  state  of  things  by  force,  thus  violating  the  right  which, 
according  to  international  law,  belongs  to  every  people,  cannot  be 
legitimated  by  an  agreement  among  the  Powers.  They  may  not, 
by  reason  of  their  autonomy,  agree  to  settle  in  their  own  way  the 
internal  affairs  of  other  states. 

A  "European  concert  "  or  an  "American  concert"  is  not  enough 
to  justify  everything.  The  European  concert  should  be  held  legit- 
imate, no  doubt,  when  its  object  is  the  legal  protection  of  in- 
ternational law;  but  it  should  not  be  so  considered  when  it  is 
formed  for  the  purpose  of  maintaining  conditions  in  opposition 
to  the  international  rights  appertaining  to  peoples  and  nationalities. 

^  See  my  work:  Diritto  internazionale  privato,  3rd  ed.,  chap.  V,  Princijn. 
fondamentali,  Torino,  Unione  Tipografico-Editrice,  1888,  translated  into 
French  by  Charles  Antoine  (Paris,  Pedone-Lauriel,  1890)  and  into  Spanish 
by  Garcia  Moreno  (Madrid,  Gongora,  1888). 


TRUE   PURPOSE    OF   THE    SCIENCE    OF    INTERNATIONAL   LAW     45 

Within  the  last  few  years, — especially  in  connection  with  Cretan 
affairs, — the  European  concert  has  been  formed  for  the  purpose 
of  securing  by  concerted  action  the  recognition  of  a  state  of  affairs 
no  longer  in  harmony  with  the  principles  which,  according  to  our 
system,  should  govern  international  society.  The  Great  Powers, 
unable  to  agree  in  regulating  the  new  conditions  which  would  re- 
sult from  the  liberation  of  the  Christian  provinces,  agreed  upon  the 
necessity  of  preserving  the  integrity  of  the  Ottoman  Empire, 
subordinating  to  that  end  the  just  aspirations  of  the  Cretans. 

In  like  manner,  the  European  concert  ought  to  have  compelled 
the  other  states,  including  Greece,  not  to  interfere  with  the  right 
of  the  Cretan  people  to  adopt  the  political  constitution  most 
conformable  to  their  national  aspirations. 

From  the  principles  set  forth,  it  follows,  furthermore,  that  as  a 
nation  has  the  right  to  provide  its  own  poUtical  constitution  and 
if  necessary,  to  defend,  by  force,  the  right  to  modify  or  change  it, 
one  must  agree  that  the  acts  of  a  revolutionary  party  intended  to 
overthrow  a  constituted  government  cannot  always  be  suljjcct  to 
the  criminal  laws  applying  to  rebels,  and  that,  when  armed  struggle 
assumes  the  character  of  a  true  civil  war,  rebels  have  the  right  to 
be  considered  as  belligerents. 

Another  result  of  the  recognition  of  the  international  rights 
of  nationalities  is  that  the  efforts  of  peoples  of  the  same  nation- 
ality bent  upon  forming  a  national  state,  cannot  be  suppressed,  but 
should,  on  the  contrary,  be  respected  as  a  consequence  of  a  legit- 
imate right. 

Nothing  can  justify  the  recourse  to  coercive  measures  designed 
to  preserve  a  state  of  affairs  opposed  to  national  aspirations,  based 
upon  pretended  dynastic  rights  and  treaties.  Neither  historic 
rights  based  on  treaties  nor  prescription  can  effect  the  destruction 
or  curtailment  of  the  right  which  all  nationalities  possess  of  con- 
stituting themselves  into  states. 

Having  admitted  international  rights  in  favor  of  uncivilized 
countries,  it  is  now  easy  to  lay  down  the  principles  intended  to 
dispel  the  erroneous  conception  that  such  countries  may  be  con- 
sidered as  outside  the  "  common  "  law.  Uncivilized  trilxvs  are  not 
indeed  in  the  same  condition  as  civilized  peoples;  the  "  connnon  " 
law  cannot  be  applied  in  the  same  way,  whatever  the  degree  of  cul- 
ture may  be.    Nevertheless,  one  can  hardly  imagine  that  any  form 


46  INTERNATIONAL   LAW   CODIFIED 

of  aggregation  of  individuals  could  be  beyond  the  pale  of  interna- 
tional law. 

Certainlj^  as  a  matter  of  principle,  colonization  and  colonial 
expansion  cannot  be  questioned;  one  should  even  admit  as  desira- 
ble a  certain  proportion  between  the  population  and  the  territory, 
and  that  civilized  countries,  in  order  to  find  new  outlets  for  their 
ever  increasing  activity,  need  to  extend  their  present  posses- 
sions and  to  occupy  those  parts  of  the  earth  which  are  not  of 
any  use  to  uncivilized  peoples.  One  should,  however,  consider 
that  colonization  is  legitimate  only  when  exercised  in  a  manner 
not  in  disregard  of  the  international  rights  of  uncivilized 
countries. 

Colonization  in  relation  to  autonomy  and  to  the  international 
rights  appertaining  to  barbarous  tribes  is  a  complex  question 
which  cannot  be  taken  up  here.  I  claim  only  that  no  result  of  a 
rational  and  equitable  nature  can  be  obtained  unless  the  interna- 
tional rights  of  uncivilized  and  barbarous  countries  are  recognized 
and  respected  like  those  of  civilized  countries. 

17.  And  now,  let  us  quickly  endeavor  to  find  the  true  balance 
between  Church  and  State. 

I  have  shown  how  the  Church  was  entitled  to  certain  inter- 
national rights  and  how  its  individuality  and  personality  as  re- 
gards the  faculty  of  enjoying  and  exercising  its  own  rights  were 
to  be  recognized. 

Now,  in  order  properly  to  determine  the  international  position 
of  the  Church  and  to  fix  precisely  the  principle  of  equilibrium  in 
the  relations  between  the  Church  and  the  State,  it  is  important 
to  bear  in  mind  the  fact  that  the  Church  is  an  institution  of  a 
spiritual  nature,  and  may  claim  its  individuality  and  existence 
jure  suo,  only,  of  course,  within  the  determined  scope  of  its  nature 
and  purposes. 

The  Church  may  certainly  demand  the  respect  of  its  interna- 
tional rights  as  do  the  various  states  of  the  world.  But  what  are 
these  rights?    They  are: 

a.  The  liberty  of  formation  and  organization  in  every  part  of 
the  world: 

6.  The  liberty  of  the  head  of  the  Church  to  communicate  with 
followers  in  order  to  maintain  the  unity  of  dogma  and  faith,  with- 
out resorting  to  coercive  measures: 


TRUE   PURPOSE   OF  THE   SCIENCE   OF  INTERNATIONAL   LAW     47 

c.  The  liberty  of  government  within  the  field  of  action  pos- 
sessed by  the  Church,  as  an  institution  of  a  spiritual  nature. 

This  is  the  extent  of  the  Church's  autonomy  and  independence, 
the  extent  of  its  individuality  and  personality  existing  jure  suo, 
to  which  are  opposed  the  State's  rights  and  the  rights  of  other 
collectivities. 

To  sum  up  the  question,  the  whole  matter  resolves  itself  into 
the  right  of  liberty  of  conscience,  an  intangible  right  of  the  human 
person,  which  takes  the  form  of  a  collective  right  whenever  the 
followers  of  the  same  faith,  scattered  all  over  the  world,  form  a 
religious  association  and  recognize  a  chief  to  whose  supreme  au- 
thority they  submit. 

In  order  not  to  interfere  with  the  liberty  of  conscience  which, 
under  the  circumstances,  becomes  a  collective  right,  it  must  also 
be  conceded  that  the  head  recognized  by  such  free  association 
should  have  as  much  freedom  to  govern  it  as  possible  within  the 
field  legally  determined  by  the  very  nature  of  the  institution, 
which  constitutes  a  true  spiritual  community.  Then,  to  determine 
the  nature  of  such  freedom  and  to  establish  properly  the  respective 
extent  of  the  Church's  and  State's  autonomy,  it  is  necessary  to 
study  very  closely  the  nature  of  both  institutions  and  of  their 
relations  with  one  another. 

In  my  opinion,  the  relations  between  the  State  and  the  Church 
cannot  be  properly  understood  unless  we  recognize  the  principle 
that  the  sovereignty  appertaining  to  the  head  of  the  State  differs 
materially — by  nature,  characteristics,  powers  and  purposes — from 
that  of  the  head  of  the  Church. 

The  correct  principle  of  the  balance  between  the  State  and  the 
Church  will  appear  easy  of  determination  once  we  admit  the  faculty 
of  both  to  exercise  their  rights,  powers  and  functions  within  their 
own  legal  sphere.  I  mean  that  their  relations  nmst  be  estab- 
lished upon  the  basis  of  a  complete  separation  of  their  powers. 

And  so,  it  must  be  admitted  that  any  Church,  so  far  as  its  con- 
stitution, organization  and  spiritual  power  are  concerned,  should 
be  independent  of  the  jurisdiction  of  any  territorial  sovereign,  and 
that  no  state  may  hinder  the  liberty  of  the  Church  so  far  as  its 
organization  and  the  exercise  of  any  spiritual  authority  over  its 
followers  are  concerned. 

The  head  of  the  Church,  having  the  right  freely  to  decide  upon 


48  INTERNATIONAL  LAW   CODIFIED 

all  matters  relating  to  the  high  administration  of  the  communion, 
ought  also  to  have  the  right  to  communicate  with  all  the  clergy 
and  persons  exercising  spiritual  functions;  to  convoke  councils 
and  synods;  to  exercise  his  ecclesiastical  legislativ^e  power  under 
canonical  form,  excluding  for  that  reason  any  coercive  action  and 
any  assistance  on  the  part  of  public  authority  against  persons  un- 
willing spontaneously  to  accede  to  canonical  rules  and  preferring 
to  abandon  their  religious  confession. 

One  must,  furthermore,  recognize  that  the  persons  who  take  part 
in  the  high  administration  of  the  Church  and  exercise  spiritual 
functions  in  congregations,  synods,  and  councils,  cannot  be  re- 
sponsible to  the  head  of  the  State,  whenever,  of  course,  the  exer- 
cise of  their  functions  aims  to  regulate  and  develop  the  spiritual 
interests  of  the  Church. 

Any  interference  of  the  government  of  the  State  in  acts  relating 
to  the  high  administration  of  the  Church,  provided  such  acts  be 
limited  to  the  field  of  spiritual  interests,  must  be  considered  unlaw- 
ful and  contrary  to  the  principles  of  international  law. 

Such  in  brief  are  the  rights  appertaining  to  the  Church  before 
the  governments  of  the  whole  world  and  which,  for  that  reason,  I 
have  called  the  international  rights  of  the  Church. 

And  now  let  us  see  what  are  the  rights  of  the  State,  by  reason 
of  its  nature  as  a  political  institution  compared  with  the  Church. 

The  sovereign  power  of  every  state  has  a  perfect  right  to  protect 
the  interests  of  the  political  community  and  to  subject  to  its  laws 
the  persons  and  the  acts  of  everyone,  whatever  the  social  interests 
involved. 

It  is  consequently  the  duty  of  a  sovereign  to  control  the  acts  of 
any  form  of  association,  of  any  form  of  collectivity,  and  therefore 
of  any  Church,  not  excluding  the  Roman  Catholic  Church,  when- 
ever such  acts  extend  beyond  the  religious  and  spiritual  domain  to 
enter  the  field  of  public  internal  law. 

The  first  result  of  this  is  that  the  Roman  Catholic  Church,  in 
so  far  as  it  is  considered  by  us  an  international  institution,  cannot 
establish  diplomatic  relations  with  a  state  without  the  previous 
consent  of  that  state  itself. 

In  no  case  can  it  claim  the  capacity  to  acquire  and  transfer 
property,  for  it  is  within  the  power  of  each  state  to  grant  or  refuse 
legal  personality  to  any  association  existing  within  it,  and  so  it 


TRUE    PURPOSE   OF   THE   SCIENCE   OF   INTERNATIONAL   LAW      49 

must  be  with  respect  to  the  Church.  So  far  as  the  acts  of  the 
government  are  concerned,  one  cannot  deny  that  the  sovereign's 
interference  is  always  justifiable  when  the  head  of  the  Church, 
making  an  unjust  use  of  his  spiritual  power,  attempts,  through  the 
doctrine  he  promulgates,  to  incite  and  instigate  the  believers  to 
disregard  the  laws  of  the  State  or  to  perform  external  acts  contrary 
to  the  rights  and  interests  of  the  State. 

Admitting,  nevertheless,  that  the  inviolability  of  the  Church's 
head  must  always  be  respected,  although  he  unduly  exercises  his 
power  under  a  canonical  form,  one  must  also  recognize  the  right 
of  the  sovereign  of  any  state  to  protect  the  interests  of  the  political 
community  against  any  attack  from  ecclesiastical  power.  The 
sovereign,  therefore,  confronted  by  encyclical  letters,  bills,  acts 
in  disciplinary  matters  opposed  to  the  law  of  the  State,  may  pro- 
hibit their  public  exhibition  and  their  coming  to  the  knowledge  of 
the  faithful.  He  may,  furthermore,  subject  to  the  laws  in  force 
and  to  the  sanctions  of  penal  law  persons  who,  in  consequence  of 
the  excitations  of  the  ecclesiastical  authorities,  have  in  the  exercise 
of  their  functions,  violated  the  rights  of  the  State.  Finally,  he 
may  forbid  the  promulgation  by  those  who  owe  obedience  to  the 
superior  ecclesiastical  authorities  of  a  doctrine  contrary  to  the 
rights  of  the  State. 

Unicuique  Suum. 

The  sovereign  of  a  State  cannot  enter  the  domain  of  conscience, 
but  he  undoubtedly  can  repress  any  external  act  contrary  to  the 
rights  and  interests  of  the  State  and  can  make  the  guilty  persons 
answer  therefor  in  accordance  with  the  laws  in  force,  even  though 
such  acts  are  alleged  to  have  been  performed  in  obedience  to  and 
under  the  influence  of  a  religious  sentiment. 

And  so,  a  church  must,  so  far  as  the  external  development  of  its 
functions  and  cult  is  concerned,  remain  always  subject  to  the 
laws  of  the  state  in  which  the  exterior  functions  and  the  cult  are 
being  exercised,  its  relations  naturally  falling  within  the  scope  of 
public  internal  law. 

The  administrative  functions  appertaining  to  the  goverment  of 
the  Church  must  be  subject  to  the  general  law  in  force  in  the 
state  where  such  functions  are  exercised,  whenever  such  exorcise 
implies  relations  within  the  domain  of  municipal  public  or  private 
law. 


50  INTERNATIONAL   LAW   CODIFIED 

The  independence  of  the  ecclesiastical  government,  for  example, 
certainly  cannot  claim  to  be  endangered  by  reason  of  the  fact  that 
disputes  which  may  arise  between  the  administration  and  private 
persons  in  consequence  of  administrative  acts  are  referred  to  the 
ordinary  courts.  Supposing  that  the  head  of  a  pontifical  congrega- 
tion, in  the  necessary  conduct  of  its  affairs,  had  signed  a  contract 
which  had  caused  litigation,  could  one  truly  deny  to  the  ordinary 
courts  the  jurisdiction  to  settle  the  controversy  and  claim  that, 
if  we  admit  such  authority,  the  independence  of  the  ecclesiastical 
government  has  thereby  been  endangered?  In  our  opinion,  cer- 
tainly not. 

To  sum  up,  the  relations  between  Church  and  State  must  be 
based  on  reciprocal  liberty  and  independence.  Free  Church  and 
free  State — always,  of  course,  in  the  sense  that  freedom,  which 
may  be  claimed  by  any  one,  is  the  freedom  to  exercise  our  powers 
and  to  develop  our  activity  within  the  limits  of  our  own  right. 

It  is,  consequently,  the  duty  of  every  state  to  repeal  all  laws 
restricting  the  freedom  of  the  Church  and  to  prohibit  all  interfer- 
ence of  the  political  authority  in  matters  relating  to  the  exercise 
of  the  spiritual  power  and  to  ecclesiastical  functions. 

It  is  the  duty  of  all  churches  and  of  the  head  of  the  Roman 
Catholic  church  to  renounce  all  claims  whatever  to  territorial 
sovereignty  and  any  exercise  of  the  rights  of  political  authority. 

18.  At  this  point,  I  beg  leave  to  sum  up  the  ensemble  of  the 
system  which,  in  my  opinion,  may  be  best  designed  to  give  in- 
ternational society  its  true  political  organization.  We  must  en- 
deavor to  arrive  at  the  declaration  and  vindication  of  the  rights 
of  all  members  of  the  international  society.  It  is  necessary  to 
broaden  the  conception  of  freedom  and  equality  and  to  consider 
both  not  only  as  territorial,  but  as  international  rights  as  well. 

Nevertheless,  by  accepting  the  concession  of  international 
freedom  and  of  international  legal  equality,  it  does  not  follow  that 
they  may  all  claim  the  same  legal  status  and  capacity. 

International  legal  equality  means  that  each  must  be  equal 
to  the  others  so  far  as  the  legal  capacity  determined  by  his  legal 
status  and  the  enjoyment  and  free  exercise  of  his  own  rights  are 
concerned. 

Therefore,  it  is  quite  evident  that  individuals,  peoples,  nation- 
alities, Churches  and  other  collectivities  cannot  claim  all  the  rights 


TRUE   PURPOSE   OF   THE   SCIENCE   OF   INTERNATIONAL   LAW      51 

appertaining  to  the  State.     Each  can  have  only  the  right  which 
belongs  to  it,  according  to  its  own  legal  status. 

It  is  manifest,  for  example,  that  the  capacity  to  conclude  treaties 
can  be  possessed  by  no  one  but  the  State,  which  is  due  to  the  fact 
that  the  State  alone  can  contract  an  international  obligation  and 
stipulate  the  terms  of  a  treaty.  Neither  man,  nation,  people  (be- 
fore they  constitute  a  State)  the  Church,  nor  any  other  association 
can  conclude  a  treaty  or  contract  a  true  international  obligation. 

An  international  obligation,  unlike  the  obligation  which  may 
exist  between  private  parties  in  civil  or  commercial  matters,  is, 
by  nature  and  object,  an  obligation  of  public  law  and  political 
law.  A  treaty  whose  object  would  be  the  obligation  to  give,  or  to 
do  or  not  to  do  a  thing,  or  whose  object  would  be  to  regulate  or 
limit  the  exercise  of  the  respective  rights  or  to  annul  or  modify 
previous  obligations,  can  be  entered  into  only  by  the  State,  as  the 
international  obligation  can  only  be  assumed  by  the  State.  Such 
obligation,  as  a  matter  of  fact,  always  bears  the  characteristics  of 
a  material  obligation,  or  is  of  a  nature  seriously  affecting  the 
economic  life  and  financial  interests  of  all  the  community,  or  of 
a  political  nature  affecting  the  life  and  personality  of  the  State. 
It  is  quite  evident,  therefore,  that  the  State  alone  can  conclude 
a  treaty,  as  the  obligation  contracted  by  means  of  a  treaty  is  one 
of  public  and  political  law,  and  represents  always  an  obligation  of 
the  political  community  uti  universitas. 

It  is  clear  to  my  mind  that  the  capacity  to  contract  an  obliga- 
tion of  such  a  nature  is  one  which  can  belong  to  the  State  alone, 
which  is  a  political  and  pubUc  institution.  My  theory,  therefore, 
does  not  contradict  the  aphorism  of  pu])licists,  according  to  which 
only  the  State  can  be  considered  a  subject  capable  of  assuming  an 
international  obligation  to  other  states  and  to  subscriber  a  treaty; 
an  aphorism  from  which  they  have  deduced  the  principle  that  the 
State  alone  must  be  considered  a  subject  of  international  law. 
Thus,  it  must  be  agreed  that  the  capacity  of  each  depends  on  his 
legal  status;  consequently,  it  is  not  difficult  to  understand  that, 
granted  the  existence  in  the  international  society  of  various  indi- 
vidualities and  collectivities,  and  that  all  must  be  considered 
subjects  of  international  law,  still  it  caimot  be  admitted  tiuit  tiiey 
all  have  the  same  legal  status  and  capacity. 

Not  even  the  head  of  the  Roman  Church  has  the  power  to  con- 


52  INTERNATIONAL  LAW   CODIFIED 

elude  treaties.  Such  power  ought  to  be  denied  him  for  the  simple 
reason  that  the  Church  is  not  a  political  institution,  but  an  insti- 
tution of  a  religious  nature,  and  for  that  reason,  he  is  not  qualified 
to  assume  an  obligation  of  a  political  nature.  No  one  can  prevent 
the  head  of  the  Church  from  concluding  with  sovereigns  of  different 
states  conventions  designed  to  regulate  by  agreement  the  exercise 
of  their  powers  in  all  matters  concerning  common  interests.  But 
the  conventions  called  "Concordats,"  referring  always  to  matters 
of  public  internal  interest,  fall  for  that  reason  within  the  domain 
of  the  public  law  of  each  state  and  not  within  the  sphere  of  inter- 
national law. 

What  we  have  said  may  serve  to  indicate  roughly  the  way 
which  must  be  followed  in  order  to  give  to  international  societj^ 
a  proper  legal  organization.  It  will  take  a  long  time  to  attain  that 
end  and  success  will  come  only  in  a  more  or  less  remote  future.  It 
will  be  the  work  of  time  and  civilization;  it  will  be  the  final  result 
of  the  evolution  which  must  take  place  through  the  co-operation 
of  the  intellectual  forces  of  all  civilized  countries. 

It  is  well  to  bear  in  mind  that  in  determining  the  principles  of 
equilibrium  and  in  regulating  the  exercise  of  rights  and  liberty  in 
the  modern  state  it  was  necessary-  to  correct  many  wrong  opinions, 
to  destroy  many  prejudices,  and  to  go  through  different  cj'cles: 
e.  g.,  the  preponderance  of  the  sacerdotal  caste;  class  privilege; 
the  autocrac}^  of  monarchs;  pre-eminence  of  dynastic  politics; 
sovereignty  of  the  people;  and  parliamentary  sovereignty. 

And  the  same  will  be  true  in  attaining  that  arduous,  complex  and 
difficult  object,  namely,  the  legal  organization  of  international 
society.  It  will  be  reached  only  by  a  transition  through  various 
cycles.  That  will  be  the  task  of  science  and  the  work  of  time  and 
civilization. 

The  sages  of  centuries  ago  unceasingly  advanced  and  perse- 
veringly  struggled,  united,  under  the  motto:  Equality  and  Liberty. 
Their  efforts  have  resulted  for  us  in  the  great  benefit  of  the  organi- 
zation of  the  political  community.  It  is  incumbent  upon  us  to  fol- 
low the  good  road  and  to  struggle  united  under  the  motto -.Mankind, 
Fraternity,  Cosmopolitism,  in  order  to  hand  down  to  our  successors 
the  rational  organization  of  international  society. 


CHAPTER  III 

FORMULATION  AND  LEGAL  PROTECTION  OF 
INTERNATIONAL  LAW 

19.  Method  of  enunciating  the  "  common  "  law.  20.  The  Congress  and  its 
authority.  21.  Its  constitution.  22.  The  confederation  of  states  as  a 
means  of  maintaining  order  in  the  international  society.  23.  Codification 
of  international  law.  24.  How  to  insure  full  efficacy  to  the  international 
jurisdiction.  2.5.  The  Conference.  26.  Arbitral  jurisdiction.  27.  How  to 
make  it  effective.  28.  Diplomatic  action,  good  offices,  mediation.  29. 
Efficacy  of  pubhc  discussion.  30.  Coercive  measures  short  of  war. 
31.  Conclusion. 

19.  One  of  the  greatest  difficulties  to  overcome  in  order  to  attain 
progress — the  realization  of  which  is  the  aim  of  science — is  to 
find  a  method  of  formulating  and  announcing  the  rules  which 
should  constitute  "  common,"  law,  to  make  such  rules  binding  as 
law,  and  to  insure  their  universal  respect. 

The  difficulty  is  all  the  more  serious  and  complex  because  the 
idea  of  a  state  possessing  over  others  superior  authority,  by  which 
it  might  impose  its  will  upon  them,  is  one  that  cannot  be  enter- 
tained. 

After  the  Congress  of  Aix-la-Chapelle  of  1818,  the  five  great 
European  Powers  believed  that  they  had  the  right  to  constitute 
themselves  as  a  permanent  council  to  regulate,  by  common  agree- 
ment, European  affairs,  and  to  exerci.se  a  veritable  hegemonj^ 
over  the  minor  states.  The  development  of  more  accurate  legal 
views,  however,  and  the  progress  of  civilization  took  from  this 
Council,  called  the  Pentarchy,  all  its  power.  The  principle  of 
the  legal  equality  of  states  is  inconsistent  with  the  preponderance 
of  certain  states  over  others. 

One  should  bear  in  mind  that  the  purpose  of  the  common  law 
of  the  international  society  nmst  be  to  declare  and  guarantee  the 
rights  of  all  and  to  regulate  all  the  relations  and  interests  of  the 
members  of  that  society.  This  law  must  not  be  proclaimed  for  the 
sole  advantage  of  states  and  governments;  its  object  should  also 
be  to  protect  the  rights  of  nations,  nationalities  and  collectivities, 

53 


54  INTERNATIONAL   LAW   CODIFIED 

which  should  themselves,  in  their  relations  with  the  State,  be 
governed  by  the  law  common  to  them  all.  It  should  contribute  to 
preserve  the  balance  of  all  active  forces  and  to  determine  the  rule 
of  proportion  between  what  everyone  may  and  may  not  do. 

Inasmuch  as  the  law  of  the  international  society  must  be  pro- 
claimed in  the  interest  of  all  its  members,  it  is  evident  that  the 
right  to  determine  this  "  common  "  law  cannot  be  the  privilege  of 
any  one  member  of  that  society.  One  must  likewise  bear  in  mind 
that,  since  all  human  things  are  subject  to  the  law  of  evolution,  the 
same  axiom  applies  to  international  relations  at  various  periods.  It 
is,  therefore,  necessary  that  the  laws  which  at  the  present  time  may 
govern  legal  relations  in  the  international  society  should  not  hinder 
future  progress  and  should  take  sufficient  account  of  the  evolution 
such  relations  must  experience.  These  cannot  be  immutable  and 
permanent.  Consequently,  it  will  be  expedient  to  determine  the 
laws  most  suitable  at  any  given  period  to  govern  international  so- 
ciety, and  it  will  be  necessary  for  that  purpose  to  take  into  account 
historical  conditions — the  result  of  intellectual  activity,  culture 
and  the  progress  of  civilization. 

Such  is  likewise  the  general  rule  applying  to  all  branches  of 
human  law.  Man  cannot  lay  down  absolute,  immutable  and 
permanent  rules.  He  must  not  forget  that  the  laws  intended  to 
regulate  any  form  of  relations  must  be  based  on  principles  of 
natural  justice;  but  as  he  is  always  supposed  to  take  historical 
exigencies  into  account,  he  should  lay  down  legal  rules  suitable 
to  the  circumstances  of  the  time. 

Accordingly,  the  common  law  of  the  international  society  should 
be  formulated  and  declared  binding  by  the  members  of  such  de 
facto  society,  interested  in  providing  themselves  with  a  law  to  gov- 
ern their  association.  Another  result  is  that,  as  such  a  law  is 
subject  to  evolution,  it  is  quite  useless  to  establish  a  permanent 
legislative  power. 

20.  Consequently,  the  best  policy,  in  our  opinion,  would  be  to 
create  a  legislative  assembly,  in  which  all  those  having  de  facto 
relations  with  one  another  in  the  international  society  would  be 
represented.  This  assembly  would  constitute  the  Congress,  to  be 
composed  of  the  representatives  of  all  the  states  desiring  to  or- 
ganize into  a  union,  and  of  members  directly  elected  by  the  people 
of  such  states. 


FORMULATION  OF    INTERNATIONAL   LAW  55 

The  Congress,  we  believe,  should  not  be  a  permanent  organiza- 
tion, but  should  convene  whenever  the  historical  exigencies  of  the 
international  society  require  the  declaration  of  new  rules  or  the 
modification  of  existing  rules.  It  should  then  adjourn  directly 
after  accomplishing  the  task  for  which  it  convened. 

In  order  clearly  to  explain  our  idea,  we  say  that  we  believe  it 
indispensable  that  the  assembly  be  composed  both  of  the  repre- 
sentatives of  the  State  and  of  those  of  the  people.  As  previously 
pointed  out,  the  people  have  international  rights  which  may  be 
distinct  from  those  appertaining  to  the  State. 

I  have  said  that  it  seems  to  me  indispensable  to  dismiss  the  idea 
of  a  permanent  Congress,  for,  inasmuch  as  any  human  law  must 
follow  the  progressive  movement  of  evolution,  there  is  an  incom- 
patibility between  such  movement  and  any  permanent  legislative 
authority. 

21.  How  should  the  Congress  be  constituted? 

So  far  as  the  representatives  of  the  states  are  concerned,  we 
agree  that  they  may  be  designated  by  the  sovereign  of  each  state, 
two  in  number,  for  instance,  without  any  difference  between  great 
and  small  states.  This  we  consider  indispensable  to  give  to  the 
assembly  its  true  character.  If  the  Great  Powers  could  have 
more  representatives,  or  their  representatives  have  more  votes, 
the  result  would  be  to  give  the  ascendancy  to  those  Powers  and, 
indirectly,  to  admit  that  superior  force  might  constitute  the  basis 
of  a  pretended  legal  authority. 

The  true  organization  of  the  international  society  is  not  possible 
unless  all  the  states,  when  it  comes  to  draw  up  the  "  common  "  law, 
occupy  a  position  of  legal  equality.  Common  law  does  not  favor 
the  interests  of  any  particular  state;  it  concerns  the  general  in- 
terests of  all  society.  It  must,  therefore,  be  admitted  that  all 
the  states  desiring  to  organize  into  a  union  have  an  equal  interest, 
as  states,  in  formulating  the  common  law  to  govern  their  relations. 

The  representatives  of  the  people  in  the  Congress  would  be 
elected  by  the  people  themselves,  according  to  a  special  elective 
system  provided  by  the  law  of  each  country,  and  distinct  from  the 
system  in  use  for  political  elections.  The  law  governing  the  elec- 
tion to  the  Congress  of  the  representatives  of  the  people  should,  in 
our  judgment,  sanction  the  principle  of  restricted  and  limited 
suffrage,  inasmuch  as,  in  order  to  arrive  at  a  judicious  choice  it 


56  INTERNATIONAL   LAW    CODIFIED 

would  seem  necessary  that  the  electorate  be  limited  to  the  well- 
informed  classes. 

We  do  not  favor  the  election  of  the  representatives  of  the  people 
by  parliament,  because  with  the  parliamentary  system  where  the 
majority  represents  the  Government's  present  policy,  the  members 
of  the  Congress  so  elected  would  merely  reflect  the  policy  of  their 
country's  parliament. 

The  Assembly  or  Congress,  as  we  conceive  it,  would  not  be 
constituted  permanently.  It  should  not  be  allowed  to  become  an 
institution  hampered  by  tradition;  it  should  be  an  assembly  con- 
stituted from  time  to  time  to  settle  certain  international  questions. 
We  fully  realize  that  the  system  we  are  suggesting  will  not  become 
a  reality  either  at  the  present  time  or  in  the  near  future.  We  are 
urging  it  only  because  we  think  that  all  the  other  systems  suggested 
are  inadequate.  Such  systems  either  require  a  complete  transfor- 
mation of  international  society,  and  for  that  very  reason  are  im- 
practicable, or  else  they  sanction  the  preponderance  of  the  Great 
Powers  over  small  states  and  may  cause  politics  to  prevail  over 
right,  and  as  such  are  equally  dangerous. 

22.  In  our  book,  published  in  1865,  we  examined  the  pro- 
posal of  a  confederation  of  states  as  a  mean  of  preserving  order 
within  the  international  society  and  of  eliminating  war.  Such  a 
measure  had  been  suggested  by  several  jurists,  who  had  in  view  the 
formation  of  an  association  between  equals,  all  the  members  of 
which  would  be  so  dependent  on  one  another  that  any  arbitrary 
act  on  the  part  of  any  one  of  them  could  be  forbidden. 

This  is  the  system  conceived  by  Rousseau  in  his  Project  of  perpe- 
tual peace.  All  the  European  Powers  were  to  unite  in  a  confedera- 
tion; a  legislative  body  would  represent  the  central  power  and 
could  enact  laws  and  issue  general  regulations  for  the  government 
of  the  Confederation;  a  judicial  body  would  be  entrusted  with 
the  application  of  the  regulations  designed  to  settle  all  differences; 
a  central  authority  would  have  the  coercive  power  to  force  the 
confederated  states  to  abide  by  the  "  common  "  law  and  to  induce 
them  to  comply  with  their  obligations. 

This  project  was  favored  by  many.  Its  main  fault  was  that  the 
Confederation,  like  the  Germanic  Confederation,  would  have  been 
composed  of  sovereigns,  and  that  it  was  proposed  to  organize  a  cen- 
tral armed  power  for  the  purpose  of  eliminating  military  preponder- 


FORMULATION  OF  INTERNATIONAL  LAW  57 

ance.  How  could  one  expect  the  triumph  of  justice  under  these 
circumstances?  Justice  is  not  always  found  on  the  side  in  which 
poHtical  interests  predominate;  it  is  found  at  its  best  in  the  con- 
science of  the  people  and  in  the  impersonal  domain  of  public  opin- 
ion. How,  on  the  other  hand,  could  one  lastingly  assure  the  legal 
equilibrium  between  the  interest  of  the  Great  Powers  and  the  inter- 
est of  collectivities  and  nations?  ^ 

As  a  matter  of  fact,  international  society  includes  states,  in- 
dividuals and  collectivities,  and  each  one  of  its  members  has  in- 
ternational rights  as  against  the  others.  Now,  in  the  natural  order 
of  things,  such  society  ought,  we  think,  to  provide  a  law  for  its 
organization. 

These  two  considerations  have  led  us  to  believe  that  the  co- 
operation of  all  the  parties  concerned  should  be  deemed  indispen- 
sable. We  cannot  concede  either  the  superiority  of  the  Great 
Powers  over  the  minor  states,  or  the  exclusive  authority  of  gov- 
ernments, or  any  privilege.  It  is  best  to  allow  all  the  interested 
parties  to  participate  in  the  making  of  the  common  law. 

The  realization  of  our  scheme  does  not  call  for  a  complete  modi- 
fication of  the  present  organization  of  international  society;  it 
only  requires  the  perfection  of  that  organization.  Moreover,  we 
are  already  following  the  right  direction.  All  the  states,  great  and 
small,  have  been  convoked  in  the  Hague  Conference.  This  fact 
constitutes  a  precedent  of  importance.  It  has  thereby  been  rec- 
ognized that  the  international  society  of  states  must  be  a  true  as- 
sociation of  equals,  and  that  an  assembly  meeting  to  draw  up 
general  regulations  cannot  comprise  merely  the  representatives  of 
the  Great  Powers. 

^  This  is  what  we  said  in  our  book  published  in  1865,  in  opposition  to  this 
proposal:  "We  ask  the  partisans  of  the  permanent  Congress  and  of  the  per- 
manent Court:  What  assurance  have  we  that  in  this  congress  of  Princes  justice 
will  truly  prevail?  To  expect  such  justice,  sovereigns,  in  the  first  place  (the 
most  inveterate  sinners  the  world  has  ever  seen),  would  have  to  be  converted. 
And  should  the  interests  of  the  Great  Powers  supersede  justice  in  the  pennanent 
Congress,  one  would  have  to  justify  their  omnipotence  by  placing  all  armed 
force  at  their  disposal,  and,  by  paralyzing  the  other  states,  condemn  them  to 
inactivity.  If  the  interest  of  the  minor  states  is,  in  the  Germanic  Confedera- 
tion (which  inspircfl  the  scheme  for  an  Kuroi)ean  Confederation),  sacrificed 
to  that  of  the  two  Great  Powers  belonging  thereto,  why  should  we  not  suppose 
that  the  same  will  be  true  of  the  European  Confederation?"  {Op.  cit.,  Chap. 
VI,  Delia  confcdrrazionc  (Irf/li  Stati  come  mezzo  per  prevenirc  la  guerra,  p.  350, 
French  edition,  p.  11,  p.  190-191.) 


58  International  law  codified 

The  only  thing  lacking  to  make  such  an  assembly  conform  with 
our  scheme,  is  popular  representation,  which,  we  may  hope,  will 
ultimately  prevail.  Perhaps  the  Interparliamentary  Union  might 
demand  and  obtain  popular  representation. 

23.  What  should  be  the  purpose  of  an  assembly  organized  along 
the  lines  stated?  Should  it  be  to  undertake  the  drafting  of  a  real 
international  code? 

The  idea  of  codifying  international  law  has  been  urged  as  one 
of  the  means  of  bringing  about  the  legal  organization  of  interna- 
tional society. 

First,  let  us  note  the  fact  that  the  codification  of  a  part  of  the 
law,  whatever  part  it  be,  can  only  be  the  final  outcome  of  long 
and  scientific  preparation  and  labor.  The  codification  of  inter- 
national law,  even  limited  to  civilized  countries,  would  be  an  un- 
timely undertaking.  In  our  opinion,  the  assembly  should  limit 
its  work  to  fixing  by  common  agreement  the  rules  of  the  common 
law,  which  may  constitute  a  new  basis  of  organization  of  inter- 
national society  and  result  in  ending  the  present  situation,  in  which 
force  prevails  over  right.  In  fact,  to  attain  practical  results,  one 
must  not  overdo  things  and  be  content  with  slow  progress. 

The  work  begun  at  the  Congress  of  Paris  of  1856  should  be 
carried  on,  and  be  directed  toward  fixing  those  principles  of  the 
modus  Vivendi  which  are  most  urgent  and  are  most  generally  and 
consistently  recognized.  This  Congress  laid  out  the  rules  concern- 
ing the  obligations  arising  out  of  neutrality,  the  suppression  of  pri- 
vateering, and  the  rights  of  belligerents  in  time  of  maritime  war. 
These  rules  are  merely  the  expression  of  the  legal  principles  con- 
sequent upon  prolonged  legal  work,  whose  adoption  was  demanded 
by  the  public  opinion  of  civilized  countries.  The  wisest  plan  would 
be  to  fix  the  rules  on  which  an  agreement  is  most  likely  to  be 
reached,  because  public  conscience  demands  them,  and  to  place 
them  under  the  collective  guaranty  of  the  states  recognizing  them. 
As  to  the  points  on  which  differences  of  view  exist,  it  will  be  nec- 
essary to  wait  until  science  and  civilization  have  opened  the  way 
to  an  agreement.  As  regards  certain  matters  of  common  interest, 
we  shall  have  to  wait  until  a  common  opinion  shall  have  been 
expressed  as  to  the  necessity  of  a  partial  codification.^ 

1  We  have  already  developed  this  idea  in  our  lectures  given  at  Brussels. 
We  had,  indeed,  formulated  this  view  in  the  early  stage  of  our  study  of  the 


FORMULATION    OF   INTERNATIONAL   LAW  59 

We  cannot  better  express  the  true  purpose  of  future  congresses, 
as  regards  the  codification  of  international  law,  than  by  quoting 
Rolin-Jacquemyns:  "The  progress  of  science  and  of  law  in  this 
matter  of  codification,"  he  says,  "may  be  somewhat  likened  to  the 
land  cultivated,  near  the  mouths  of  the  Scheldt,  over  the  area 
formerly  covered  b}--  water.  The  riparian  owner,  patient  and 
experienced,  does  not  hasten  to  dam  up  the  area  left  uncovered 

matter;  for,  on  page  277  of  our  work,  published  at  Milan  in  1865  {Nuovo  Di- 
ritto  internazionale  pubblico  sccondo  i  besogni  della  civiltd  moderna),  we  said: 

"The  Congresses  should  not,  in  our  opinion,  attempt  to  limit  war  and  dis- 
putes, hut  ought  to  study  the  means  of  preventing  them.  Since  the  Congress 
of  Paris  opened  up  a  new  era  in  the  history  of  diplomacy,  we  hope  that 
the  meetings  of  sovereigns  will  become  as  useful  as  they  have,  till  now,  proved 
liarmful.  The  Congress  of  Vienna  represents  to  our  mind  the  last  form  of 
what  congresses  have  been  in  the  past;  the  Congress  of  Paris  is  the  beginning 
of  what  congresses  will  be  in  the  future.  Thus,  as  the  fomier  ends  the  old  his- 
tory of  diplomacy,  the  latter  is  the  beginning  of  its  modem  history. 

"We  know  that  reforms  cannot  be  realized  at  once.  The  intrinsic  perturba- 
tions of  law  can  only  be  remedied  gradually  by  successive  reforms  and  con- 
tinuous efforts;  but  we  feel  certain  that  pubhc  opinion, — that  all-powerful 
segis  of  the  public  law  of  the  future,  with  its  hundred  voices,  like  hundred-eyed 
Argus — will  be  the  guide-posts  of  future  congresses." 

Again,  on  page  293  of  the  same  work,  we  said : 

"We  hope  that  the  jjrogram  outlined  at  the  Congress  of  Paris  will  be  more 
thoroughly  developed  in  another  general  European  congress,  and  we  desire 
that  important  congresses  shall  meet,  not  after  a  bloody  war,  but  in  time  of 
peace,  to  lay  down  the  principles  of  the  new  international  law,  upon  which 
must  be  based  the  existing  social  order. 

"The  European  Powers  declined  the  invitation  of  France  to  meet  in  a  con- 
gress in  order  to  settle  the  many  questions  which  are  compelling  Europe  to 
remain  under  arms  in  time  of  peace  and  constitute  an  obstacle  to  pubhc 
I)rosperity.  But  the  only  reasons  which  caused  the  Great  Powers  to  decline 
that  invitation  were  self-interest  and  the  love  of  unsound  politics.  As  a  matter 
of  fact,  they  saw  the  need  of  adopting  new  principles  in  contradiction  with  the 
j)olicy  they  had  hitherto  followed,  and  that  they  further  intend  to  follow.  But 
the  need  of  a  general  congress  is  felt  even  by  the  Powers  opposed  to  it;  and 
what  will  bring  them  to  discuss  the  questions  that  have  disturbed,  and  are 
Ktill  agitating,  Europe,  will  be  the  force  of  events  and  the  indestructible  power 
of  public  opinion. 

"The  most  powerful  protection  of  the  right  of  peoples,  and  the  most  pow(!r- 
ful  force  likely  to  end  the  exterior  perturbations  of  states,  is  public  opinion, 
sovereign  of  the  world,  as  Pascal  calh^d  it.  Diplomacy  would  deny  the  secret 
of  its  power,  but  it  is  nevertheless  certain  that,  sooner  or  later,  diplomacy  will 
have  to  take  it  into  account,  because  it  is  implacable,  unbridled,  and  immut- 
able. It  cannot  be  subducil  by  int(?rest,  nor  subjected  by  force,  because  it  is 
impersonal.  The  force  of  public  oi)inion  li(!s  in  its  impartiality,  and  w(!  are 
fully  8atisfi(!d  that  it  will  reconcile  the  Powers  to  the  idea  of  the  meeting  of  a 
congress,  and  compel  them  to  acknowUnlge  principles  of  law  hitherto  disre- 
garded and  violated  in  the  interests  of  sovereigns." 


60  INTERNATIONAL   LAW    CODIFIED 

by  the  receding  water,  for  fear  that  a  violent  return  of  the  tide 
may  take  away  from  him  more  than  he  had  been  eager  to  appropri- 
ate. He  waits — as  he  expresses  it — until  the  alluvion  is  ripe. 
Similarly,  the  codification  of  international  law  must  be  like  a  pro- 
gressive damming  of  the  matured  parts  of  the  law  against  the 
waves  of  arbitrariness."  ^ 

24.  We  have  attempted  thus  far  to  determine  the  law  which 
should  govern  international  society;  but  it  is  necessary,  besides,  to 
insure  the  respect  of  established  rules,  and  to  find,  as  a  means  of 
coercion,  a  rational  system  other  than  the  recourse  to  force. 

We  leave  aside  the  constitution  of  an  international  permanent 
court.  Besides,  as  we  have  said,  we  consider  arbitration  as  in- 
adequate. 

An  arbitral  court  could  not  settle  all  difficulties,  for  certain  dis- 
putes cannot  be  submitted  to  it  as  involving  general  interests 
and  the  existence  of  international  society. 

And  so,  without  underrating  the  importance  of  arbitration,  we 
favor  a  different  institution,  the  Conference,  which  would  become 
a  sort  of  arbitral  court,  to  which  would  be  referred  those  disputes 
which,  by  their  nature  and  object,  cannot  be  submitted  to  arbitra- 
tion. 

To  our  mind,  the  Conference  should  represent  a  sort  of  executive 
and  judicial  power.  It  would  not  be  a  permanent  body,  but  an 
institution  with  a  well-defined  purpose,  to  be  constituted  whenever 
circumstances  might  justify  it.  It  should  be  given  the  necessary 
power  to  insure  the  respect  of  the  international  laws  promulgated 
by  the  Congress,  to  prevent  disturbances  arising  out  of  the  non- 
observance  of  such  laws  and  to  apply  them  towards  settling 
disputes  of  a  complex  nature  which  may  disturb  peace  and  the 
legal  organization  of  international  society.  The  Conference 
should  consequently,  we  believe,  represent  a  sort  of  arbitral  court, 
but  of  a  superior  order;  its  purpose  would  be  to  preserve  in  the 
international  society  the  legal  organization  established  by  the 
Congress.  In  order  to  attain  a  true  international  organization, 
it  is  necessary  to  find  the  principle  of  equilibrium,  and  to  define 
accurately  the  attributes  of  any  institution.  Arbitration  is  a  use- 
ful institution  and  if,  under  the  present  conditions,  governments, 
seeing  the  advantage  of  peacefully  settling  differences,  undertake 
^  Revue  de  droit  international,  v.  IX,  p.  147. 


FORMULATION   OF    INTERNATIONAL   LAW  61 

to  consent  to  arbitration  (even  in  a  limited  manner),  they  are  thus 
clearly  manifesting  their  desire  to  prevent  international  distur- 
bances. But,  we  repeat,  the  international  questions  liable  to  dis- 
turb peaceful  relations  and  to  bring  about  a  general  conflagration, 
are  those  complex  questions  which  by  their  nature  cannot  be 
submitted  to  arbitration. 

Such  disputes  ought  to  be  referred  to  the  Conference.  As  they 
are  not  of  daily  occurrence,  it  is  not  indispensable  that  the  Con- 
ference be  a  permanent  institution.  It  should  convene  only  when 
a  dispute  arises  within  the  domain  of  its  jurisdiction. 

25.  How  should  the  Conference  be  constituted?  It  should,  we 
believe,  comprise  two  delegates  from  each  of  the  Great  Powers, 
appointed  by  the  governments  at  the  time  of  the  meeting  of  the 
Conference;  the  delegates  of  the  government  or  governments 
directly  interested  in  the  case;  and  finally  the  representatives  of 
the  people,  speciall}^  elected  by  the  people  for  the  Congress.  ^ 

The  delegates  of  the  Great  Powers  and  the  people's  representa- 
tives ought  to  have  a  deliberative  voice.  The  representatives  of 
the  state  directly  interested  in  the  pending  question  ought  to  take 
part  in  all  the  discussions,  but  without  any  right  of  vote. 

According  to  the  system  proposed,  an}''  of  the  states  belonging 
to  the  union  might  call  a  meeting  of  the  Conference.  Such  meet- 
ing would  take  place  whenever  a  dispute  has  arisen  between  two 
or  more  states  concerning  the  interpretation  of  a  rule  of  law  pro- 
claimed by  the  Congress,  or  concerning  any  principle  of  general  or 
common  law,  provided  the  question  could  not  be  settled  by  di- 
plomac3\ 

26.  Now,  let  us  take  up  arbitration.  The  purpose  of  arbitration 
must  be  to  settle  all  questions  of  personal  interest  arising  between 
two  or  more  states  by  applying  rules  of  connnon  law  laid  down  by 
the  Congress,  or  rules  arising  out  of  treaties  concluded  between 
the  parties  to  the  case. 

Everything  relating  to  the  formation  of  the  arbitral  court: 
choice  of  the  arbitrators,  qualifications  required  to  be  an  arbitra- 

'  In  order  that  our  idea  may  clearly  be  understood,  we  may  say  that,  as 
the  communal  or  provinr^ial  courlcil  selects  the  Junta  from  its  own  nicinhers, 
so  the  members  elected  by  the  j)eople  for  the  Congress  should,  befon;  the 
Conpnjss  adjourns,  select  among  themselves  the  members  for  the  Conference, 
when  such  C'onfcrcncc  eventually  convenes.  These  members  so  nominated 
might  number  seven,  for  example,  or  be  more  numerous. 


(52  INTERNATIONAL   LAW    CODIFIED 

tor,  procedure  of  the  arbitral  court  beginning  with  the  compromis, 
annulment  or  suspension  of  the  com.'promis,  rules  to  be  observed 
by  the  court  in  order  to  render  an  award  and  make  it  operative, 
causes  of  nullity  entitling  the  parties  to  take  exception  to  the 
award — all  this  should  be  provided  for  in  general  regulations  en- 
acted by  the  Congress. 

There  is  no  necessity  here  to  examine  the  principles  governing 
the  general  rules  relating  to  arbitration.  It  is  merely  necessary  to 
determine  what  we  consider  essential  to  give  to  arbitration  its 
full  operative  power. 

Let  us  suppose  that  the  point  at  issue  is  one  concerning  a  partic- 
ular interest,  which,  as  we  have  said  before,  may  be  referred  to 
arbitration,  and  that  one  or  other  of  the  parties  declines  to  sub- 
mit to  arbitration  and  threatens  to  disturb  the  peaceful  relations 
existing  between  itself  and  the  opposing  party.  The  difficulty 
thus  arising  would  constitute  a  question  of  general  interest.  In- 
deed it  is  a  matter  of  common  interest  to  prevent  complications 
which  threaten  or  disturb  the  peaceful  relations  of  states,  since 
an  arbitrary  act  in  the  international  society  constitutes  a  danger 
for  all,  and  not  merely  for  the  state  against  which  such  act  is 
directed. 

It  should  not,  in  our  opinion,  be  left  to  either  party  freely  and  ar- 
bitrarily to  accept  or  decline  arbitration,  for  otherwise  a  true  legal 
organization  would  be  created  in  appearance  only.  We  do  not 
go  so  far  as  to  consider  arbitration  as  an  institution  capable 
of  eliminating  absolutely  all  danger  of  war;  but  we  maintain 
that  it  must  be  considered  as  capable  of  bringing  about  the  peace- 
ful settlement  of  any  question  within  the  domain  of  arbitral 
jurisdiction. 

We  believe,  therefore,  that  the  submission  to  arbitration,  may, 
if  not  willingly  accepted,  be  imposed. 

The  voluntary  submission  would  always  arise  out  of  an  express 
clause  of  a  treaty  under  whose  provisions  the  parties  may  have 
agreed  to  submit  to  arbitrators  any  misunderstanding  which  might 
arise  between  them,  or  out  of  a  special  compromis,  under  which 
they  may  have  bound  themselves  to  refer  to  arbitrators  some 
particular  legal  dispute. 

Compulsory  arbitration  should  be  the  result  of  a  deliberation 
of  the  Conference  which,  by  affirming  that  the  point  at  issue  is 


FORMULATION  OF  INTERNATIONAL  LAW  63 

justiciable  by  arbitrators,  would  impose  arbitration  on  the  parties 
in  the  absence  of  a  compromis. 

27.  Accepting  the  conception  of  the  Conference  as  we  do,  its 
aim  would  be  to  prevent  international  difficulties  liable  to  disturb 
peace.  Consequently,  it  ought  to  be  entrusted  with  the  mission 
of  giving  to  arbitration  its  full  effect,  and  of  deciding  that  the 
parties  should  submit  to  arbitration  when  the  nature  of  the  dispute 
is  capable  of  submission  to  arbitration. 

The  Conference  should  also  have  the  power  to  compel  the  par- 
ties to  execute  the  arbitrators'  award. 

The  method  to  adopt,  we  believe,  might  be  as  follows:  Let  us 
suppose  that  a  dispute  arises  between  two  or  more  states,  and  that, 
in  the  absence  of  any  contractual  agreement,  one  of  the  parties 
should  claim  that,  the  case  being  of  a  nature  to  be  submitted  to 
arbitrators,  it  is  willing  to  agree  to  arbitration,  and  so  notifies  the 
other  party.  If,  following  this  diplomatic  notification,  the  other 
party  should  persist,  while  maintaining  its  contentions,  in  refus- 
ing to  agree  to  arbitration,  the  adverse  party,  after  establishing 
such  refusal,  could  appeal  to  the  Conference  and  the  latter  would 
have  the  right  to  impose  arbitration. 

The  Conference  could  be  appealed  to  even  where  a  compromis 
exists,  when  one  of  the  parties  refuses  to  accept  arbitration  be- 
cause the  object  in  dispute  is  alleged  to  be  outside  the  terms  of 
the  arbitral  agreement,  or  when  one  of  the  parties  claims  that,  in 
the  particular  circumstances  of  the  case,  the  object  in  dispute 
could  not  be  referred  to  arbitration,  notwithstanding  the  agree- 
ment of  both  parties  to  refer  to  the  decision  of  arbitrators  any 
difficulty  whatever. 

Now  let  us  suppose  that  the  party  found  in  the  wrong  by  the 
arbitral  court  should  refuse  to  abide  by  the  award. 

It  is  absolutely  necessary,  in  order  to  make  arbitration  regally 
successful,  that  the  execution  of  awards  be  assured.  The  arbi- 
trators' decision  must  as  a  rule  be  considered  as  final  and  as  settling 
completely  the  question  submitted  to  them.  Therefore,  the  parties 
must  recognize  in  the  decision  of  an  arbitral  court  the  authority 
of  a  final  judgment  and  execute  it  fairly,  without  reservation  or 
restriction.  Should  one  of  the  parties  refuse  ultimately  to  execute 
an  award  and  if,  the  other  party  insisting,  it  should  persist  in  its 
Hifusal,  it  should  be  tleterniined  whether  such  refusal  is  legitimate 


64  INTERNATIONAL   LAW   CODIFIED 

or  not.    The  decision  of  such  a  question  would  lie  with  the  Con- 
ference. 

It  might  happen  that  such  refusal  is  based  on  the  alleged  nullity 
of  the  award.  In  order  justly  to  weigh  such  a  contention,  it  would 
be  necessary  that  the  general  regulations  on  arbitration,  drawn  up 
by  the  Congress,  should  fix  and  determine  the  grounds  for  nullity 
which  might  be  invoked  against  an  award.  It  would  be  quite 
proper,  furthermore,  to  charge  the  Conference — whose  duty, 
according  to  our  system,  it  should  be  to  insure  the  observance  of 
the  rules  adopted  by  the  Congress — with  the  decision  as  to  whether 
the  refusal  to  comply  with  the  award  because  of  nullity  is  legitimate 
or  arbitrary,  with  the  faculty,  in  appropriate  cases,  to  suspend 
the  execution  of  the  award  either  wholly  or  in  part,  or  to  compel  its 
execution. 

28.  Among  the  measures  calculated  to  prevent  international 
difficulties  must  be  mentioned  diplomatic  action,  good  offices  and 
mediation. 

It  is  not  merely  to  fulfill  a  humane  duty,  but  also  to  protect 
the  interests  of  its  country,  that  every  government  must  co- 
operate and  employ  its  moral  influence  to  settle  a  dispute  arising 
between  two  states.  At  this  time,  in  fact,  the  interests  of  all 
countries  are  so  completely  interdependent,  that  no  event  can  take 
place  in  any  part  of  the  world  which  affects  merely  the  personal 
interests  of  the  parties  concerned.  International  trade  has  made 
the  division  of  labor  and  the  maintenance  of  peaceful  relations 
between  all  states  an  absolute  necessity.  Any  disturbance 
always  brings  about  within  a  state  economic  and  social  unrest. 
The  true  aim  of  a  prudent  and  shrewd  policy  must  be  to  recon- 
cile the  interests  of  each  country  with  those  of  other  countries. 
Any  diplomatic  action  tending  peacefully  to  settle  conflicts  be- 
tween states  must,  consequently,  be  considered  not  only  as  a 
humane  action,  but  as  an  act  of  wise  policy.^ 

29.  Public  discussion  will  prove  one  of  the  best  means  of  con- 
tributing to  the  pacific  solution  of  disputes.  It  is  important  to 
place  the  question  at  issue  squarely  before  public  opinion,  in  order 
that  it  may  pass  judgment. 

The  mysterious  power  of  public  opinion  is  growing  constantly, 

'  See  our  article  published  in  the  Digesto  italiano,  s.  V°,  Agenti  diplomatici, 
§  385  et  seg.,  Delia  vera  missione  della  diplomazia. 


FORMULATION  OF  INTERNATIONAL  LAW  65 

now  that  the  telegraph  informs  us  with  the  swiftness  of  thought,  as 
it  were,  of  anything  that  takes  place  in  the  most  distant  countries. 
In  proportion  as  the  sentiment  of  solidarity  of  the  civilized  nations 
develops,  they  will  better  understand  their  common  interest  in 
assuring  the  dominance  of  the  principles  of  justice  over  those 
of  politics.  Public  opinion  will  be  increasingly  better  informed, 
in  proportion  as  popular  representation  assumes  a  larger  share 
in  the  government  of  public  affairs  and  in  the  direction  of  foreign 
policies.  Within  each  state,  public  opinion  may  be  influenced 
and  corrupted  by  the  intrigues  of  politicians;  but  public  opinion 
in  the  world  at  large  is  always  impartial,  just  as  it  is  impersonal 
and  disinterested.  It  is  called  upon  to  exercise  an  ever-increasing 
moral  influence  over  diplomacy.  Discussion  taking  place  in  broad 
daylight,  it  will  be  more  difficult  for  politics  to  prevail  over  right, 
and  for  governments  to  upset  with  impunity  the  equilibrium  of 
the  international  society. 

It  is  this  that  suggests  to  us,  as  a  rule  of  common  law,  which  the 
Congress  could  formulate,  that  whenever  a  dispute  arises  between 
states  of  the  Union  which  has  failed  of  settlement  through  dip- 
lomatic negotiations,  good  offices,  and  mediation,  the  parties 
should  acquaint  the  other  states  with  the  cause  of  their  misunder- 
standing. 

The  state  claiming  injury  should  be  bound  to  specify,  through 
a  diplomatic  note  addressed  to  the  other  governments,  the  reasons 
upon  which  its  claims  are  based.  The  other  party  should  likewise 
explain  its  conduct  in  a  note  addressed  to  the  same  governments. 

All  the  communications  should  be  made  public,  in  order  properly 
to  enlighten  the  discussion  and  squarely  to  set  forth  the  conditions 
of  the  international  dispute  to  public  opinion. 

If,  after  such  a  public  discussion,  the  party  in  the  wrong  should 
persist  in  its  claims,  the  question  could  be  referred  to  the  Con- 
ference, to  decide  whether  the  matter  in  dispute  is  within  the 
jurisdiction  of  an  arbitral  court  or  within  its  own  jurisdiction. 

In  the  former  case,  the  Conference  would  order  that  the  question 
be  brought  up  before  the  arbitral  court,  and  arbitration  would  be 
imposed. 

Should  the  matter  in  dispute  be  complex  and  should  it  be  feared 
that  peaceful  relations  between  the  states  organized  as  a  Union 
might  bo  disturbed,   the  Conference  could  decree  the  coercive 


66  INTERNATIONAL  LAW   CODIFIED 

measures  necessary  to  insure  the  observance  of  the  common  law 
which  should  govern  international  society. 

In  this  order  of  ideas,  one  could  justify  collective  intervention 
whenever  it  should  be  necessary  to  safeguard  the  authority  and 
the  observance  of  the  common  or  general  law. 

For  it  must  be  admitted  that  it  is  the  duty  of  all  the  states 
organized  as  a  Union  to  assure  the  respect  of  the  common  law  es- 
tablished by  them  through  legal  measures  provided  in  conformity 
with  international  law.  The  particular  law  established  between 
two  or  more  states  by  treaty  may  be  the  object  of  protective 
measures  agreed  upon  by  the  parties,  provided  that  such  measures 
are  not  contrary  to  common  law.  Nothing  more  effective  could 
be  found  to  safeguard  common  law  than  the  collective  legal  pro- 
tection of  the  associated  states.  The  Conference  which,  under 
our  system,  must  assure  the  respect  of  international  law  by  all 
the  world  must  justly  be  considered  competent  to  determine  the 
measures  best  adapted  to  that  end. 

The  Conference  would,  consequently,  be  competent  to  decide 
whether  a  state  or  a  people  have  so  acted  as  to  violate  common  law. 
To  prevent  an  unlawful  act,  it  should  be  given  the  power,  in  the 
first  place,  to  order  the  use  of  all  the  peaceful  means  usually  re- 
sorted to  in  settling  disputes,  that  is  to  say,  good  offices,  mediation 
and  all  forms  of  diplomatic  action.  It  could,  consequently,  en- 
trust a  Power  with  the  mission  of  acting  as  mediator  to  the  parties. 
In  such  case,  in  order  properly  to  fulfill  its  mission,  the  state  so 
designated  ought  to  have  the  right  to  request  the  submission  of  all 
the  documents  relating  to  the  dispute,  to  seek  information  con- 
cerning the  nature  of  the  dispute,  to  examine  the  diplomatic 
negotiations  and  the  supporting  documents  of  all  the  parties. 
It  should  weigh  in  good  faith  and  impartially  the  reasons  invoked 
in  support  of  the  reciprocal  claims  of  the  parties,  and  should  act 
as  a  wise  and  prudent  conciliator  in  order  to  remove  all  difficulties 
and  endeavor  to  bring  about  between  the  opponents  an  agreement 
or  a  reasonable  compromise. 

If  that  be  not  sufficient,  if  the  party  in  the  wrong  should  per- 
sistently refuse  to  yield,  the  Conference  could  finally  order  the 
use  of  the  coercive  means  authorized  in  times  of  peace,  without 
resorting  to  the  disastrous  and  terrible  method  of  war. 

This  is  a  case  where  collective  interference  (or  what  we  would 


FORMULATION   OF   INTERNATIONAL  LAW  67 

call  the  European  or  American  Concert)  is  fully  justified.  The 
concert  cannot  compel  the  world  to  accept  the  decisions  of  the 
Great  Powers;  but  we  must  consider  as  legitimate  and  conforma- 
ble to  justice  the  collective  protection  of  common  law,  whose 
respect  it  would  insure  by  applying  to  any  state  violating  it  the 
peaceful  coercive  measures  decreed  by  the  Conference. 

30.  We  do  not  think  it  necessary  to  dwell  at  length  on  the  sub- 
ject of  lawful  peaceful  measures  other  than  war.  As  a  matter  of 
fact,  no  one  can  deny  that,  if  a  state  refused  to  respect  common 
law,  to  comply  with  the  decisions  of  the  Conference,  or  to  execute 
the  awards  of  an  arbitral  court,  the  Conference  should  have  the 
right  to  decree  the  use  of  coercive  measures  lawful  in  time  of  peace. 
According  to  our  system,  such  measures  should  be  decided  upon 
by  the  Congress.  Everything  relating  to  general  interests  would  be 
within  its  domain.  It  would  have  to  regulate  the  international 
society  formed  by  the  states  constituting  the  Union,  and  to  lay 
down  the  rules  for  the  collective  legal  protection  of  common  law. 
It  should  also  have  the  power  to  provide  for  extraordinary  means 
to  prevent  an  impending  war,  or,  after  it  has  broken  out,  to  in- 
terrupt its  disastrous  consequences.^ 

Among  such  measures,  we  admit  the  commercial  or  pacific 
blockade,  provided  it  does  not  assume  the  same  character  as  the 
blockade  resorted  to  in  time  of  war. 

31.  The  system  thus  set  forth  has  guided  us  in  the  study  of 
the  principles  which  we  shall  develop  in  the  course  of  this  work, 
although  at  the  same  time  we  do  not  believe  that  its  immedi- 
ate realization  is  possible.  This  great  reform  will  be  the  work  of 
time  and  evolution.  We  have  merely  attempted  to  point  the 
way  which  must  be  followed,  with  the  object  of  inducing  every- 

'  This  idea  to  give  to  Congresses  a  purpose  quite  different  from  the  one  they 
now  have  and  to  consider  this  reform  as  the  most  useful  measure  for  the  legal 
organization  of  international  society  has  been  my  constant  conviction  from 
the  very  beginning  of  my  studies  on  this  subject.  In  (he  book  published  at 
Milan  in  1865  under  the  title  Nuovo  Dirillo  inlernazionale  pubblico  secondo  i 
hisogrd  della  civilla  moderna,  which  was  translated  into  French  by  Pradier- 
Fodere  in  1868,  I  had  demonstrated  the  necessity  of  giving  to  Congresses 
the  noble  mission  of  establishing  the  general  rules  of  the  law  of  nations,  and  I 
had  maintained  that  all  the  representatives  of  the  states,  without  distinction 
between  small  and  great  Powers,  should  sit  in  these  Congresses.  See  Chai>- 
ter  XLII  of  the  work  Principii  diretlivi  dei  congressi  inter nazionnle,  j).  272, 
and  the  imi)ortant  foot-note  of  Pradier-Fod(5r6  on  this  chapter  in  the  French 
translation,  v.  II,  p.  04. 


68  «  INTERNATIONAL  LAW   CODIFIED 

body  to  lend  us  the  most  effective  co-operation  of  his  intellectual 
powers. 

This  movement  will  be  particularly  favored  by  the  increasing  de- 
velopment of  international  trade  and  civilization.  These  constitute 
two  powerful  factors,  which  will  continue  to  secure,  strengthen  and 
increase  the  same  aspirations,  the  same  sentiments,  and  the  same 
ideas,  as  far  as  the  common  interests  of  mankind  are  concerned. 
Instead  of  a  coalition  of  states,  we  shall  see  realized  a  confedera- 
tion of  civilized  nations.  All  will  agree  in  considering  war  a  most 
disastrous  scourge,  and  by  the  union  of  their  forces,  they  will  com- 
pel governments  to  renounce  the  aspirations  of  military  greatness 
and  to  consider  war  as  the  greatest  of  all  crimes. 

As  for  us,  we  shall  never  lose  faith  in  our  ideal. 

THE  PRIMITIVE  BOND  OF  MANKIND  WAS  THE  FAM- 
ILY, THE  FINAL  BOND  WILL  BE  THE  LEGAL  CON- 
FEDERATION OF  CIVILIZED  NATIONS. 


CHAPTER  IV 

THE  AMERICAN  INSTITUTE  OF  INTERNATIONAL  LAW 
—JEROME  INTERNOSCIA'S  NEW  CODE  OF  INTER- 
NATIONAL LAW 

32.  The  American  Institute  of  International  Law  proposed  by  James  Brown 
Scott  and  Alvarez,  and  its  purpose.  33.  Opinion  of  various  European 
jurists  as  to  its  purpose.  34.  Our  opinion.  35.  Internoscia's  new  Code 
of  International  Law  and  its  purpose.  36.  Our  opinion  of  Internoscia's 
work. 

32.  On  the  initiative  of  the  eminent  publicists,  Drs.  James 
Brown  Scott  and  Alexander  Alvarez,  there  has  been  founded  in 
America  the  important  association  known  as  the  American  Institute 
of  International  Law.  It  is  a  scientific  association  with  no  official 
character,  whose  aim  is: 

a.  To  contribute  to  the  progress  of  international  law  and  to 
cause  the  nations  of  the  American  continent  to  accept  its  principles; 

b.  To  promote  the  scientific  and  methodical  study  of  interna- 
tional law,  to  popularize  its  principles,  to  diffuse  their  knowledge 
in  their  application  to  the  conduct  of  international  relations; 

c.  To  contribute  towards  a  better  understanding  of  interna- 
tional rights  and  duties,  and  the  formation  of  a  common  sentiment 
of  international  justice  among  the  peoples  of  the  American  con- 
tinent; 

d.  To  endeavor  to  bring  about  the  universal  acceptance  of 
pacific  action  in  the  adjustment  of  the  international  relations  of  the 
nations  of  the  American  continent. 

With  these  objects,  the  American  Institute  of  International  Law 
was  created  to  formulate  general  principles  of  international  law, 
to  strengthen  the  bonds  which  unite  the  American  peoples  to  one 
another  in  order  adequately  to  provide  for  the  needs  of  the  Ameri- 
can Republics  in  their  reciprocal  relations,  as  also  for  those  of  an 
internal  character,  so  as  to  respond  to  the  legal  conscience  of  the 
civilized  world.  It  also  proposed  to  discuss  questions  of  inter- 
national law,  especially  those   likely  to  arise  among  the  Ameri- 

69 


70  INTERNATIONAL  LAW   CODIFIED 

can  Republics,  and  to  endeavor  so  far  as  possible  to  settle  them 
in  conformity  with  the  principles  generally  accepted  bj^  interna- 
tional law;  or  by  extending  and  developing  such  principles  in 
response  to  the  express  or  implied  aspirations  of  the  American 
Republics,  in  conformity  with  the  essential  principles  of  right  and 
justice. 

The  two  eminent  American  publicists  then  outlined  the  pro- 
gramme of  their  new  institution  and  requested  European  jurists 
to  express  their  opinion  as  to  the  advisability  of  the  new  Institute 
contemplated. 

33.  Various  members  of  the  Institute  of  International  Law  have 
discussed  the  proposed  foundation  at  length.  The  discussion  was 
initiated  by  an  article  published  in  the  Revue  generale  de  droit 
international  public  by  Lapradelle,  under  the  title:  Ulnstitut 
american  de  droit  international.^  Thereupon,  Bar,  Catellani, 
Dupuis,  Fauchille,  Lammasch,  Politis,  Alberic-Rolin,  Weiss,  West- 
lake  and  others  expressed  their  opinions.  The  majority  notes 
the  difficulty  arising  from  the  very  title  of  the  new  foundation, 
which,  by  assuming  the  name  of  "American,"  thus  alters  in  a 
measure  the  conception  of  the  Institute  of  International  Law,  to 
which  ought  to  be  assigned  a  world,  rather  than  an  European, 
Asiatic,  or  American,  character.  The  discussion  of  this  matter 
created  great  general  interest,  the  more  so  as  Dr.  Alvarez  (one  of 
the  founders  of  the  new  institution)  relied  squarely  on  the  Mon- 
roe Doctrine  and  had  in  1910  published  a  book  entitled:  Le  droit 
international  americain,  son  fondement,  sa  nature.  This  volume 
provoked  the  publication  of  the  work  of  the  Brazilian  professor,  Sa 
Vianna:  De  la  non-existence  d^un  droit  international  americain, 
which  he  presented  in  1912  at  the  Pan-American  Congress.  The 
two  publications  gave  rise  to  long  discussions  in  America  and  in 
Europe  as  to  whether  or  not  it  could  be  admitted  that  American 
international  law  possesses  a  special  character,  different  from  that 
appertaining  to  universal  international  law.  This,  in  fact,  taken  in 
its  correct  sense,  would  mean  the  law  of  international  society,  that 
is  to  say,  of  all  peoples  scattered  over  the  world,  with  due  regard, 
for  its  proper  application,  to  all  the  historical  and  moral  conditions 
of  each  region  to  which  such  law  must  be  applied.  The  distinction 
between  American  international  law  and  international  law  being 
*  Revue  ginerale  de  droit  internal,  public,  v.  XIX,  1912,  p.  1. 


THE    AMERICAN   INSTITUTE    OF   INTERNATIONAL   LAW  71 

granted,  hardly  a  person  would  admit  the  alleged  distinction  be- 
tween American  international  law  and  European  international  law. 

34.  This  is  not  the  place  to  examine  at  length  such  a  controversy, 
or  to  set  out  and  discuss  the  opinion  of  the  eminent  jurists  who 
expressed  their  views  concerning  the  step  taken  by  Drs.  Scott 
and  Alvarez,  who  stood  as  sponsors  for  the  creation  of  the 
American  Institute  of  International  Law.  We  wish  only  to  state 
our  own  modest  opinion  as  to  the  advisability  of  establishing  such 
an  Institute. 

No  one,  on  principle,  can  deny  that  all  men  should  co-operate 
in  the  great  work  of  establishing  and  drawing  up  a  common  law 
and  the  rules  of  the  association  of  civilized  states. 

This  is  the  task  of  science,  which  best  asserts  itself  in  the  scien- 
tific society  where  collective  effort  takes  the  place  of  individual 
endeavor.  Its  noble  task  is  the  development  of  the  legal  con- 
science of  civilized  peoples  with  respect  to  the  rules  adopted  to 
govern  the  mutual  relations  of  states,  and  the  enunciation  of  the 
present  common  law.  Thus  it  will  be  possible  to  induce  national 
representatives  to  accept  that  law  and  to  cause  its  proclamation 
by  the  collective  representatives  of  the  states  assembled  in  a 
Congress. 

The  Institute  of  International  Law,  founded  at  Ghent  in  1873 
upon  the  initiative  of  eminent  European  and  American  jurists, 
was  established  with  that  humanitarian  end  in  view.  Now  the 
great  advantage  which  may  also  be  derived  from  the  contribution 
to  the  great  work  of  the  American  jurists  assembled  as  a  scientific 
association  must  be  generally  recognized.  I  consider,  therefore, 
that  the  foundation  of  the  American  Institute  of  International 
Law  will  be  of  great  value  from  the  point  of  view  of  the  general 
interest. 

The  foundation  of  the  new  association  appears  to  us  important 
from  another  point  of  view.  International  positive  law  cannot 
become  the  common  law  of  the  states  in  union  unless  it  is  accepted 
and  ratified  by  those  who  must  recognize  its  compulsory  legal 
force.  Now  it  seems  to  us  that  the  American  Institute  of  Inter- 
national Law  will  be  able  to  assist  in  demonstrating  how  certain 
rules  of  common  law  are  adaptable  to  the  historical  and  moral 
requirements  of  the  American  Republics.  Thus,  it  will  be  possible" 
to  eliminate  certain  difficulties  in  bringing  about  the  acceptance 


72  INTERNATIONAL   LAW   CODIFIED 

by  America  of  the  rules  of  positive  international  law.  The  latter 
will  not  constitute  the  common  law  of  the  states  and  groups  of 
states  which  live  in  a  society  unless  they  consent  to  recognize 
its  authority.  Hence,  it  is  necessary  that  it  be  adapted  to  the 
historical  and  moral  conditions  and  requirements  of  these  states, 
in  order  to  make  their  recognition  less  difficult. 

Now  it  is  a  fact  that  the  American  Republics  constituted  with 
the  sentiment  of  their  independence  have  bound  themselves 
jointly  and  severall}^  to  protect  it.  This  sentiment  was  solemnly 
proclaimed  by  ^Monroe  in  his  message  of  December  2,  1823,  in 
which  he  asserted  that  no  European  Power  would  have  the  right 
to  interfere  with  the  destinies  of  the  American  Republics  or  with 
their  independence.  This  conception  was  subsequently  exag- 
gerated to  the  point  of  professing  to  uphold  their  independence 
even  in  spite  of  international  law  and  of  laying  claim  to  an  Ameri- 
can international  law,  a  claim  which,  in  an  absolute  sense,  we  can- 
not support. 

In  a  measure  it  cannot  be  regarded  as  forbidden  to  a  state,  as  a 
consequence  of  its  autonomy  and  independence,  to  proclaim  in  its 
relations  with  other  states  certain  rules  of  law.  It  is  necessary, 
however,  to  observe  that  the  rules  thus  proclaimed  can  only  be 
considered  as  rules  of  public  internal  law.  We  consider  that  the 
same  may  be  said  of  a  group  of  states  situated  on  the  same  conti- 
nent. Such  states,  basing  themselves  on  their  autonomy  and 
independence,  and  with  a  view  to  better  meeting  their  historical 
and  moral  needs  collectively  considered,  and  to  better  safeguard 
the  development  of  their  common  interests,  may  agree  to  proclaim 
in  their  relations  with  other  states  certain  rules  as  their  common 
law.  It  must  furthermore  be  noted  that  such  rules,  to  he  accurate, 
could  not  have  the  character  of  international  law,  but  rather  that 
of  interstate  common  law.  International  law  properly  speaking 
should  constitute  the  common  law  of  the  states  in  any  section  of 
the  world  which,  being  in  union,  have  recognized  the  compulsory 
legal  force  of  the  law  proclaimed  through  their  co-ordinate  action. 
A  striking  example  of  this  is  found  in  the  rules  agreed  upon  in  the 
last  Hague  Conference  of  1907,  in  which  states  from  all  over  the 
world  participated,  44  in  number,  several  of  them  from  America 
and  others  from  Asia. 

The  delegates  plenipotentiary  appointed  to  represent  the  several 


THE    AMERICAN    INSTITUTE    OF    INTERNATIONAL    LAW  73 

states  were  unanimous  in  signing  the  various  conventions,  but 
each  made  some  reservation  to  the  rules  approved.^ 

The  conclusion  to  be  drawn  from  the  above  is  that  the  inde- 
pendence of  the  American  Republics  in  establishing  rules  of  in- 
ternational law  proper  may  be  considered  as  dangerous. 

Unwillingness  on  the  part  of  other  states  to  recognize  as  common 
law  the  law  proclaimed  by  the  American  states  would  cause  a  great 
practical  drawback  in  the  development  of  international  law. 
Thus,  there  would  follow  an  actual  change  in  the  conception  of 
international  law  by  the  creation  of  an  obstacle  to  the  practical 
establishment  of  a  legal  homogeneity  between  the  European  and 
American  states. 

In  order  to  obviate  all  disadvantages  and  prevent  difficulties 
which  may  arise  in  practice,  we  deem  it  advisable  to  draw  a  line 
of  distinction  between  international  law  proper  and  interstate  law. 
International  law  would  be  the  complement  of  the  legal  rules  most 
likely  to  bring  about  the  legal  communion  of  all  the  civilized 
states  of  the  world,  whether  European,  Asiatic  or  American.  In- 
terstate law,  on  the  other  hand,  would  indicate  the  common  and 
public  law  of  the  American  Republics  in  their  relations  among 
themselves. 

Now,  international  law  proper  must,  in  respecting  interstate 
law,  be  in  harmony  with  it.  It  would  be  necessary  also  to  have 
due  regard  for  the  rules  established  by  the  American  Republics 
as  interstate  law. 

On  the  other  hand,  in  order  to  contribute  to  the  development 
of  international  law  and  to  make  it  applicable  to  all  the  American 
Republics,  the  interstate  law  established  by  them  should  not  be  an 
obstacle  to  their  relations  with  other  states.  This  must  be  deemed 
indispensable  in  order  to  establish  a  legal  community  between 
the  European  and  American  states. 

This  would  be  the  exalted  purpose  of  the  American  Institute  of 
International  Law  and  the  great  contribution  it  could  make  to 
the  promotion  of  international  law  and  the  creation  of  a  legal 
community  between  European  and  American  states. 

Such  an  institution,  as  a  scientific  association  without  any  offi- 
cial status,  sh(nil(l  also  endeavor  to  bring  about  the  acceptance  of 
the  general  principles  of  international  law  proper  by  the  American 
'  See  supra  for  the  conventions  signcnl. 


74  INTERNATIONAL   LAW    CODIFIED 

Republics  and  to  aid  as  much  as  possible  in  harmonizing  inter- 
state law  with  the  common  principles  of  international  law. 

Bearing  in  mind  this  important  mission,  we  feel  sure  that  those 
who  have  launched  the  project  of  the  new  institution  will  know 
best  how  to  organize  their  work  so  as  to  insure  the  realization  of  its 
practical  aims,  and  we  predict  for  it  the  greatest  success. 

35.  Internoscia  is  one  of  the  most  recent  writers  on  interna- 
tional law,  and  the  author  of  the  New  Code  of  International  Law, 
published  in  1910  in  New  York  in  three  languages — English, 
French  and  Italian. 

In  his  introduction,  the  author,  regarding  the  present  law  as 
inadequate  and  in  need  of  recasting,  proposes  a  new  order  of 
things  designed  to  improve  the  internal  law  of  nations.  It  is  not 
our  intention  to  develop  the  author's  conception  as  manifested 
in  his  introduction,  but  to  outline  its  fundamental  points  in  order 
to  show  the  errors  of  method  and  system. 

The  author  plans  to  present  a  code  of  international  law  capable 
of  regulating  all  possible  relations  between  states,  and  of  individ- 
uals with  states,  with  a  view  to  abolish  war  and  to  substitute 
armed  peace.  He  states  that  ''two-thirds  of  this  Code  contain 
what  is  found  in  books  on  international  law,  published  during  the 
last  two  or  three  generations.  The  rest,  while  it  is  not  to  be  found 
in  such  books,  is  yet  not  altogether  new  to  modern  minds;  in  fact 
it  is  something  felt  by  almost  every  heart  beating  in  this  twentieth 
century,  something  which,  if  expressed  in  one  phrase,  might  be 
said  to  be  a  longing  for  universal  peace  J  ^  ^ 

He  affirms  that  "the  law,  as  it  is,  is  inadequate,  it  needs  recast- 
ing; the  law,  as  it  is,  is  eaten  by  its  own  rust;  at  certain  places  it 
reaches  the  ideal,  at  others  it  falls  short  of  common  sense."  "  When 
I  say  law — he  says — I  mean  the  highest  type  of  law,  the  law  of 
nations,  the  international  law  which  includes  in  itself  all  the  other 
laws  of  mankind.  .  .  ."  ^  Accordingly  he  conceives  an  interna- 
tional law  which,  in  his  opinion,  would  be  the  law  that  the  repre- 
sentatives of  all  the  states  of  the  world  ought  to  proclaim  in  the 
international  Congress.  It  is  the  latter's  function,  in  his  opinion, 
to  carry  out  the  law  and  to  insure  respect  for  it,  with  the  supreme 

'  Internoscia,  New  Code  of  International  Law,  First  ed.,  1910,  Introduction, 
p.  ix. 

^  Id.,  op.  cit.,  p.  X. 


THE   AMERICAN   INSTITUTE   OF   INTERNATIONAL   LAW  75 

right  of  appealing  to  international  force  in  order  to  destroy  a 
state  which  would  refuse  to  comply  with  the  law  so  proclaimed.^ 
He  considers  that  "the  most  important  function  of  the  interna- 
tional Congress  is  that  of  ordering  the  forcible  execution  of  its 
judgments.  Such  an  execution,  when  made  necessary  by  the  per- 
sistent refusal  of  the  condemned  state  to  comply  with  the  inter- 
national command,  is  nothing  less  than  war;  but  if  such  an  event 
ever  happens,  it  will  be  because  of  the  folly  of  a  single  state,  which 
will  still  have  the  right  to  assert  its  independence  and  claim  the 
rights  of  a  belligerent,  even  in  opposition  to  the  international 
force."  " 

He  arrives  at  this  result  by  considering  that  "the  ideal  of  peace 
is  found  in  the  aspiration  towards  a  new  organization  of  the  com- 
munity of  states,  an  organization  in  which  all  the  controversies 
between  state  and  state  must,  without  exception,  be  solved  by 
legal  means  provided  for  that  purpose,  namelj^  an  adequate  body 
of  laws,  magistrates  to  apply  them,  punishments  for  infringers, 
and  a  regular  force  sufficient  to  inflict  the  punishment  that  any 
state  may  incur."  ^ 

He  states  that  it  would  not  even  be  decisive,  as  the  community 
of  states,  to  be  organized  for  the  legal  protection  of  international 
law,  must  be  a  supreme  power,  designed  to  respect  and  to  command 
respect  for  the  independence  of  peoples.  Hence  it  seems  to  pro- 
vide a  codification  which  represents  positive  international  law 
and  to  institute  a  magistracy  competent  to  apply  that  law.  He 
looks  forward,  therefore,  to  the  realization  of  the  triumph  of  peace, 
as  the  outcome  of  a  state  of  affairs  which  he  thus  describes:  "when 
the  codification  of  international  law  will  be  identically  accepted 
by  all  the  states,  and  when  by  the  will  of  the  whole  civilized  world 
there  will  exist  a  supreme  magistrature  (sic)  constituted  by  all  the 
states.  Until  this  is  done,  and  until  war  is  abolished  by  the  act 
of  all  the  states  and  a  world-wide  jurisdiction  is  constituted,  war 
will  not  change  its  functions  and  the  dangers  for  right  and  for 
civilization  will  not  be  diminished."  "* 

The  author  thus  indicates  his  conception  which  prompts  him 

^  Internoscia,  New  Code  of  Inlernalional  Law,  First  ed.,  1910,  Introduction, 
p.  xi. 

^Id.,  op.  cil.,  p.  xliv. 
'  Id.,  op.  cit.,  \).  xiv. 
*  Id.,  op.  cit.,  p.  XV. 


76  INTERNATIONAL   LAW   CODIFIED 

to  request  the  co-operation  of  thought  and  action  united  for  a 
common  purpose. 

Proceeding  along  these  Hues,  Internoscia  has  presented  to  the 
pubHc  a  complete  code  containing  5657  articles,  the  most  exten- 
sive code  that  has  ever  been  written.  For  that  reason,  he  declares 
that  two-thirds  of  it  contains  what  is  found  in  books  on  inter- 
national law,  and  he  does  not  cite  any  of  the  writers  whose  theories 
he  has  accepted.  In  order,  however,  to  prevent  any  criticism, 
he  announces  that  he  will  name  the  authors  upon  whom  he  has 
drawn  and  whose  works  were  published  in  French,  English  and 
Italian.^ 

36.  Without  attempting  to  examine  what  the  author  planned 
to  do,  we  shall  merely  say  that  the  whole  work  can  be  divided  into 
two  parts.  In  the  first  part,  which,  as  he  states,  represents  two- 
thirds  of  the  book,  he  gives  what  is  found  in  the  works  on  interna- 
tional law  published  during  the  last  two  or  three  generations;  in 
the  second  part,  he  endeavors  to  explain  how  the  longing  for  uni- 
versal peace  can  be  realized. 

Among  the  writers  whose  opinions  the  author  has  freely  and 
literally  quoted,  it  must  be  stated  that  in  public  law  he  has  text- 
ually  reproduced  several  of  the  rules  codified  by  us;  thus,  for 
example,  articles  2,  3,  71,  72,  360,  368,  369,  371,  394,  1069,  1071, 
1077,  1078,  1090,  3163,  1172,  1173,  1419,  1420,  1421,  1422,  1414, 
1415,  etc.  of  Internoscia  correspond  to  the  articles  in  Fiore  (Diritto 
internazionale  codificato,  1909)  numbered  40,  note  to  rule  54,  389, 
392,  983,  978,  963,  953,  275,  543,  545,  611,  613,  396,  643,  649-652, 
653,  1175,  1176,  1178,  1179,  1182,  1185,  etc. 

In  private  international  law,  also,  he  sums  up  principles  set 
forth  by  us,  as,  for  example,  articles  1976,  1979,  1981,  1984,  1990, 
etc.,  which  correspond  to  articles  1044,  1048,  1053,  1057,  etc.,  of 
Fiore  (Diritto  internazionale  privato,  1901,  vol.  III). 

Desiring  to  express  my  opinion  of  Internoscia's  work,  I  shall 
merely  say  that  the  account  he  gives  of  the  principles  advocated 
by  writers  for  settling  international  questions  constitutes  the  best 
part  of  his  work  and  testifies  to  the  author's  extensive  study. 
The  means  that  he  recommends  for  the  abolition  of  war  and  for 
providing  all  mankind  with  a  legal  organization,  without  making 

'  Internoscia,  New  Code  of  International  Law,  First  ed.,  1910,  Introduction, 
pp.  viii-ix. 


THE    AMERICAN    INSTITUTE    OF   INTERNATIONAL   LAW  77 

any  allowance  for  the  various  gradations  that  exist  between  the 
different  states  of  the  world,  make  his  work  a  vain  and  useless 
labor.  For  an  equahty  of  legal  condition  among  the  states  of  the 
various  regions  of  the  world  is  not  admissible  unless  the  fact  is 
recognized  that  a  difference  exists  between  them,  determined  bj-^ 
circumstances,  culture  and  civilization, — circumstances  which  es- 
pecially distinguish  the  actual  condition  in  which  the  natives  of 
Asia  and  Africa  are  found,  as  compared  to  the  civilized  peoples 
of  the  other  parts  of  the  w^orld.  Nor  can  the  constitution  of  a  Con- 
gress be  effectuated  which  would  have  the  authority  and  the  means 
of  subjecting  all  the  inhabitants  of  the  world  to  its  high  authority; 
nor  is  it  conceivable  that  it  could  have  the  authoiity  to  order  the 
use  of  coercive  measures  against  whatsoever  agglomeration  of 
peoples  declined  to  accept  its  decisions. 

The  writer  finally  asserts  that  the  said  Congress  may  order  the 
dissolution  of  a  state  which  does  not  submit  to  its  authority  and 
that  it  may  compel  it  to  do  so  by  force,  using  for  this  purpose  the 
coercive  means  of  war. 

Without  going  any  further,  our  conclusion  is  that  the  writer, 
for  the  purpose  of  furnishing  a  legal  organization  to  the  whole 
international  society,  planned  an  unsound  and  unpracticable 
undertaking. 


CHAPTER  V 

PURPOSE  OF  THE  PRESENT  WORK— SOURCES  OF  THE 
LEGAL  RULES  FORMULATED  THEREIN— DIVISION 
OF  THE  SUBJECT 

37.  Purpose  of  this  treatise.  38.  Explanation  of  its  title.  39.  Practical  eflBcacy 
of  scientific  law.  40.  Sources  of  our  codified  rules.  41.  Importance  of 
popular  legal  convictions.  42.  Authors  and  historical  law.  43.  Divisions 
of  the  present  work. 

37.  From  the  ideas  developed  in  the  foregoing  chapters,  it 
follows  that  international  law  constitutes  a  branch  of  the  whole 
sphere  of  law,  still  in  its  period  of  elaboration.  Therefore,  those 
wishing  to  discuss  it  cannot  confine  themselves  to  a  doctrinal  ex- 
position of  the  existing  law,  as  in  the  case  of  civil  and  commercial 
law  and  of  other  branches  of  positive  law,  composed  of  a  collection 
of  codified  laws.  It  has  already  been  observed  that  the  rules  of 
international  law  which  at  the  present  time  have  the  authority 
of  positive  law  are  few  and  are  wanting  in  a  true  legal  sanction. 

The  scholar  is  naturally  obliged  to  consider  the  future  as  well  as 
the  present,  and  must  take  reason  and  induction  as  a  guide  of  his 
observations  in  order  to  complete  and  perfect  the  existing  law  and 
to  prepare  its  progressive  elaboration.  The  ultimate  purpose,  in 
fact,  is  to  bring  about  a  systematic  drafting  of  the  body  of  rules 
which  ought  to  constitute  the  common  law  of  civilized  countries 
and  serve  to  bring  to  realization  the  legal  organization  of  society. 

Accordingly,  we  purpose  to  set  forth  international  law,  taking 
into  account  the  existing  law  and  such  rules  as  may  be  capable  of 
becoming  law.  In  other  words,  we  intend  systematically  to  form- 
ulate the  body  of  rules  which  consist  in  part  of  those  accepted  by 
states  in  general  treaties,  in  their  legislation  or  in  diplomatic  docu- 
ments, and  in  part  of  those  rules  found  either  in  the  popular  con- 
victions which  have  manifested  themselves  in  our  time,  or  in  the 
common  thought  of  scholars  and  the  most  learned  jurists.  As  a 
natural  consequence,  the  rules  systematically  assembled  in  the 
present  volume  represent  in  part  present  international  law,  and  in 

78 


PURPOSE   OF   THE   PRESENT  WORK  79 

part  the  international  law  of  the  future.  As  a  whole,  it  comprises 
the  system  which,  in  our  opinion  is  calculated  to  endow  interna- 
tional society  with  a  legal  organization. 

38.  We  are  presenting  this  body  of  rules,  based  on  historical, 
scientific  and  rational  law,  under  the  title  of  International  Law 
Codified. 

This  very  title  indicates  that  it  does  not  deal  with  a  body  of 
legal  rules  having  the  same  authority  as  those  collected  in  a  code 
of  positive  law,  for  in  that  case  the  work  would  have  been  entitled 
Code  of  International  Law.  On  the  contrary,  it  was  our  wish  to 
follow  the  example  first  given  by  the  Genoese  jurist  Paroldo,  ^ 
and  at  a  later  period,  by  Petrusheveez,^  Bluntschli,^  Field, ^  and 
others,  and  we  have  purposed  to  set  forth,  in  the  form  of  a  code,  the 
rules  of  international  law,  with  a  view,  primarily,  to  present  to  the 
public  a  system  as  methodical  and  complete  as  possible. 

Neither  should  it  be  supposed  that  international  law  codified, 
as  we  present  it,  is  to  be  considered  as  a  project  of  an  international 
code  proposed  to  governments  to  be  adopted  by  them  in  its  en- 
tirety. We  are,  nevertheless,  convinced  that  sometime  the  inter- 
national society  will  bring  to  realization  Mirabeau's  prophetic 
phrase:  "Le  droit  sera  un  jour  le  souverain  du  monde."  But  to 
imagine  that  governments  could  all  immediately  agree  upon  a 
complete  and  codified  body  of  rules  would  be  to  hope  for  the  reali- 
zation of  a  fanciful  and  untimely  enterprise. 

It  is  our  firm  belief  that,  in  the  international  society,  force  will 
cease  to  exercise  absolute  preponderance,  and  will  be  replaced  by 
the  authority  of  law.  But  we  also  believe  that  this  end  will  be 
better  attained  by  proceeding  cautiously  and  being  guided  by 
favorable  circumstances.  It  would  be  an  exaggeration  to  conceive 
the  idea  of  codifying  international  law  in  its  entirety.  It  will  be 
possible  indeed  to  effectuate  the  codification  of  such  matters  on 
which  common  legal  convictions  have  been  formed,  and  to  wait 
until  civilization,  progress  and  the  community  of  commercial  rela- 
tions make  possible  the  codification  of  new  subjects  of  common 
international  interest.    Every  new  step  will  be  a  conquest  tending 

'  Saggio  di  codificazione  del  Diritlo  internazionale. 

*  Prids  d'un  code  da  droit  international. 

'  Das  moderne  Volkerrecht  der  civilisirten  Staten  als  Rechtsbuch  dargcstellt,  mil 
Erlduterungen.    Droit  international  codifiA  tnin slated  by  Lardy. 

*  Outlines  of  an  international  code,  2(i  edition. 


80  INTERNATIONAL  LAW   CODIFIED 

to  assure  the  sovereignty  of  law  in  tiie  world;  but  it  will  be  neces- 
sary to  wait  until  the  precious  fruit  is  ripe,  and  it  will  always  be 
necessary  to  proceed  graduallj'. 

Now  that  we  have  disposed  of  ambiguities  and  explained  the  title 
given  to  this  book,  we  may  say  that  we  have  tried  to  explain  in  the 
notes  which  rules  have  the  authority  of  positive  law  and  which  the 
force  of  scientific  law.  For  it  must  be  said  that  the  rules  evolved 
by  scholars  cannot  possibly  have  the  same  compulsory  legal 
force  as  those  proclaimed  by  the  authorities  qualified  to  lay  down 
the  positive  rules  of  the  relations  existing  amongst  the  subjects 
belonging  to  international  society.  Such  rules  have,  however,  the 
authority  which  must  be  assigned  to  the  general  principles  of  law 
whenever  no  rule  of  positive  law  has  been  enunciated  either  by  the 
competent  organs  of  the  state  or  by  plenipotentiaries  in  a  treaty 
and  rendered  compulsory  amongst  states  by  reciprocal  consent. 
Rules  derived  from  the  concurrence  of  opinion  among  the  foremost 
publicists  on  a  particular  principle  acquire,  therefore,  an  effective 
authority,  even  with  governments.  For  it  cannot  be  denied  that 
when  the  most  qualified  publicists  of  different  countries  are  in 
accord  upon  proposing  a  legal  rule,  that  circumstance  must  mili- 
tate strongl}^  in  favor  of  the  legitimacy  of  the  principle.  The  re- 
sult is  that  rules  elaborated  by  jurists,  though  actually  lacking  the 
force  of  positive  law  for  want  of  governmental  consent,  have  never- 
theless a  great  value,  since  governments  cannot  fail  to  consider 
them  as  the  most  exact  expression  of  the  legal  sentiment  of  our 
time,  and  cannot  disregard  their  reciprocal  obligation  to  apply 
them  in  their  mutual  relations.^ 

39.  We  must  note  that  the  practical  authority  of  scientific  law 
is  greater  in  proportion  as  the  domain  of  positive  law  is  smaller. 
Even  when  positive  laws  are  codified,  the  legal  principles  derived 
from  scientific  law  exercise  their  authority  whenever  there  is  no 
positive  law  to  govern  and  the  omission  cannot  be  supplied  by  the 
application  of  legal  rules  provided  to  govern  similar  or  analogous 
cases. 

The  legislators  of  all  countries  recognize   that  no   system   of 

^  Solent  autem  gentium  sentencia:  de  eo  quod  inter  illas  justem  esse  debet  triplici 
mode  manifestari,  moribus  scilicet  et  usu,  pactio  et  foederibus,  et  tacita  appro- 
batione  juris  regidarum  a  prudentibv^,  ex  ipsis  reriirn  causis  per  inter pr eta lionem 
et  per  rationem  deductarum.    Warkonig,  Doctrina  jurisphilosophica,  No.  146. 


PURPOSE   OF   THE    PRESENT   WORK  81 

positive  law  can  be  so  complete  and  perfect  as  to  comprise  all  the 
rules  intended  to  apply  to  all  cases  and  to  settle  all  disputes. 
They  admit,  therefore,  that,  all  diflEiculties  having  to  be  settled  by 
judges,  the  latter,  in  the  absence  of  a  rule  of  law  applicable  to  the 
case  submitted  to  them  or  of  a  rule  covering  similar  or  analogous 
cases,  must  decide  according  to  the  principles  of  law.  Now,  it  is 
generally  recognized  that  the  general  principles  of  law  are  indeed 
those  laid  down  by  jurists  who,  at  various  periods,  expound  the 
legal  thought  of  their  day  on  current  matters  and  lay  down  rules 
responding  to  the  exigencies  of  real  life. 

Consequently,  principles  of  scientific  law  always  have  their 
practical  authority  and  efficacy,  even  when  positive  and  concrete 
legal  rules  are  codified,  whenever  a  particular  case  cannot  be  de- 
cided by  applying  the  rules  formulated  by  legislators.  The  practi- 
cal value  of  such  principles  is  always  certain  for  the  reason  that  a 
judge  can  never  refuse  to  pass  upon  a  case  under  pretense  of  the 
non-existence  or  insufficiency  of  the  law,  inasmuch  as  the  state 
imposes  upon  him  the  duty  of  deciding  every  case. 

As  a  consequence,  the  authority  of  scientific  law  being  greater 
in  proportion  to  the  deficiencies  of  positive  law,  its  authority  in 
international  law  must  be  very  great,  since  positive  law,  so  to 
speak,  is  conspicuously  absent. 

40.  We  shall  now  indicate  the  sources  from  which  we  have  drawn 
our  legal  rules. 

The  main  source  is  found  in  general  conventions.  These  are 
not  very  numerous,  but  their  number  is  constantly  increasing; 
they  constitute  the  best  source  of  positive  law  because  they 
represent  the  uniform  law  accepted,  by  reciprocal  agreement, 
by  the  parties  who  have  signed  or  given  their  adhesion  to  these 
conventions. 

We  have,  furthermore,  ascribed  great  importance  to  the  pro- 
ceedings of  congresses,  and  especially  to  the  declarations  of  the 
representatives  of  governments  in  the  protocols  relating  to  gen- 
eral conventions,  as  such  declarations  must  be  considered  as  ex- 
pressing the  common  views  of  the  governments  represented.  Even 
when  certain  rules  have  not  the  character  of  law  and  of  positive 
law  by  virtue  of  the  consent  of  the  governments  represented,  one 
must,  nevertheless,  consider  as  very  important  the  authority 
arising  from  the  accord  existing  in  the  wording  of  a  draft  agnu'incnt 


82  INTERNATIONAL   LAW   CODIFIED 

accepted  by  a  large  number  of  plenipotentiaries  meeting  to  agree 
upon  questions  of  common  law,  although  the  draft  itself  is  subject 
to  the  approval  of  their  respective  governments.  Even  though  the 
rules  so  formulated  assuredly  cannot  by  that  fact  acquire  legal 
force,  they  must,  nevertheless,  have  great  authority  as  expressing 
the  views  of  the  representatives  of  states  upon  rules  which  in 
their  opinion,  ought  to  be  adopted  as  law. 

In  this  category  fall,  for  example,  the  rules  adopted  at  the  Con- 
ference of  Brussels  of  August  27th,  1874,  on  the  laws  and  usages 
of  war.  The  draft  presented  to  that  Conference,  convened  at  the 
suggestion  of  Russia,  was  drawn  up  after  a  long  discussion,  and 
although  not  finally  approved  and  made  compulsory,  it  has, 
nevertheless,  a  great  value.  For  one  cannot  deny  that,  as  govern- 
ments saw  the  need  of  laying  down  in  common  accord  concrete 
and  positive  legal  rules  concerning  their  relations  in  time  of  war 
in  order  to  lessen  so  far  as  possible  the  injuries  which  war  causes 
to  neutral  states  and  to  the  non-combatant  citizens  of  the  belliger- 
ent states,  and  as  they  had  met  in  Conference  for  such  a  purpose, — 
one  must  assign  a  considerable  value  to  the  rules  adopted  by  the 
plenipotentiaries  in  the  form  of  a  draft,  subject  to  the  final  ap- 
proval of  their  respective  governments. 

Particular  treaties,  that  is,  those  concluded  between  two  or  more 
states  for  the  purpose  of  regulating  their  special  mterests,  can  be 
considered  as  formulating  legal  rules  binding  only  upon  the  states 
concerned. 

It  must,  however,  be  observed  that  so  far  as  certain  matters 
are  concerned,  particular  treaties  may  be  considered  as  valuable 
sources  of  legal  rules  for  common  international  law,  which  may  be 
authoritative  with  respect  to  other  states,  although  they  may  not 
yet  have  received  the  general  approval  of  those  states,  or  been 
accepted  as  rules  of  positive  and  concrete  law  through  the  recipro- 
cal agreement  of  such  states.  This  point  must  be  explained. 
Special  treaties  may  represent  all  the  positive  and  binding  rules 
concluded  between  states  entering  into  them,  which  rules  must 
be  considered  reciprocally  binding  by  reason  of  their  assent.  It 
must,  however,  be  observed  that,  especially  in  the  particular 
treaties  concluded  since  1856  on  matters  of  common  interest,  a 
certain  uniformity  of  principles  is  found.  Now  it  seems  to  us  that 
such  uniformity  must  have  great  authority  in  assigning  to  these 


PURPOSE   OF   THE    PRESENT   WORK  83 

principles  the  character  of  common  law  for  all  the  states  having  the 
same  degree  of  civilization. 

This  may  be  said,  for  example,  of  certain  uniform  rules  relating 
to  the  rights  of  consuls,  the  extradition  of  offenders  and  the  pro- 
tection of  trade  or  commercial  marks.  It  cannot  be  contended 
that  the  legal  rules  contained  in  the  majority  of  particular  treaties 
have  the  force  of  positive  law,  not  only  between  the  parties  which 
have  concluded  them,  but  also  with  respect  to  others.  Never- 
theless, particular  treaties  may  be  considered  a  source  of  connnon 
international  law,  for  it  seems  to  us  that  a  uniformity  in  treaties 
must  be  deemed  an  indirect  recognition  of  the  common  law  of 
civilized  states;  and  while,  therefore,  such  uniform  law,  embodied 
in  particular  treaties,  has  not,  strictly  speaking,  the  true  authority 
of  common  law,  yet  it  represents  what  with  little  difficulty  may 
be  said  to  be  an  approximation  to  a  collective  declaration  on  the 
subjects  under  consideration. 

We  have  also  taken  into  account  the  municipal  legislation  of 
civilized  countries,  because  from  it  international  law  may  be  de- 
duced, especially  when  it  regulates  international  relations  in  a  uni- 
form manner.  This  point,  indeed,  must  be  clearly  understood  in 
order  to  avoid  ambiguities.  The  law  proclaimed  by  a  sovereign  is 
onl}'  binding  on  his  subjects.  Although  a  national  legislature  may 
codify  the  principles  of  public  or  private  international  law,  the 
law  thus  promulgated  retains  none  the  less  its  proper  character  as 
the  municipal  law  of  a  particular  state,  or  of  civil  law,  in  the  sense 
given  to  that  word  by  Roman  jurists,  jus  quod  quisque  populus  ipse 
sibi  constituit  et  proprium  ipsius  civitatis  est,  quod  vocatur  JUS 
CIVILE  quia  quasi  jus  proprium  ipsius  civitatis.^ 

Thus,  for  example,  in  Italy,  many  rules  of  international  law  gov- 
ernmg  war  are  found  in  the  field  regulations  of  the  Italian  army.- 

Other  analogous  provisions  are  found  in  Italy  in  the  niilitar>' 
penal  code  and  in  the  merchant  marine  code.  The  latter  contains 
a  section  relating  to  maritime  law  in  time  of  war,  in  which  the  legit- 
imate acts  of  war,  the  treatment  of  neutral  ships  and  merchandise, 
and  the  duties  of  neutrality  are  laid  down  and  the  articles  consti- 
tuting contraband  of  war  enumerated. 

In  the  legislation  of  other  civilized  countries,  provisions  are  also 

'  L.  9,  Dig.,  De  juHticifi  rt  jiirr,  1,  i. 

*  See  these  regulations,  apjiroved  by  royal  decree  of  November  26,  1882. 


84  INTERNATIONAL   LAW   CODIFIED 

to  be  found  regulating  certain  matters  of  international  law.  Thus, 
in  the  United  States,  the  Instructions  for  the  Government  of  the 
Armies  in  the  Field,  published  in  1863,  comprise  a  complete  body 
of  international  rules  in  time  of  war.  We  need  not  refer  to  the 
special  rules  issued  by  France,  and  the  regulations  of  Russia. 

Attention  must  again  be  called  to  the  fact  that  the  municipal 
laws  of  the  different  states  cannot  have  any  force  beyond  their  own 
territory  and  their  own  citizens.  It  must  be  said,  however,  that, 
just  as  the  conc\irrence  of  jurists  contributes  to  give  authoritative 
weight  to  the  principles  they  recognize,  so  the  concurrence  of  a 
great  many  legislatures  with  regard  to  certain  rules  of  international 
law  contributes  largely  to  impose  such  rules  upon  the  civiUzed  world. 

In  order  to  make  this  proposition  clear,  we  may  recall  the  uni- 
formity of  the  municipal  legislation  of  civilized  states  concerning 
the  legal  status  of  foreigners  and  the  acquirement  of  civil  rights 
properly  so  called,  namely,  the  inviolability  of  personal  property, 
right  of  choosing  one's  nationality  and  of  expatriation  without  the 
previous  consent  of  the  government. 

We  have  also  considered  as  a  source  of  the  rules  of  international 
law,  the  acts  of  governments  in  their  diplomatic  relations.  Al- 
though it  is  quite  evident  that,  strictly  speaking,  the  unquestioned 
and  unreserved  acceptance  by  governments  of  certain  principles 
of  international  law,  solemnly  proclaimed  in  diplomatic  acts,  can- 
not accord  to  these  principles  the  authority  of  positive  law,  never- 
theless the  enunciation  of  these  principles  by  one  nation  and  their 
tacit  acceptance  by  another  must  give  them  great  authority  in 
both  countries. 

This  is  true  especially  with  regard  to  the  principles  involved  in  the 
Roman  question,  explained  in  a  circular  communication  of  the 
Italian  government  in  1870  after  the  annexation  by  Italy  of  the 
Papal  States.  In  that  note  the  right  of  the  Romans  was  proclaimed 
to  avail  themselves  of  their  natural  liberty  to  join  the  Kingdom  of 
Italy,  and  the  respect  due  to  their  will  solemnly  expressed  by  a 
plebiscite. 

This  principle  having  been  generally  accepted  must  be  deemed 
a  rule  of  international  law.  One  must  accordingly  exclude  as 
contrary  to  modern  public  law  the  inaccurate  principle  advanced 
by  the  partisans  of  the  Papacy  that,  in  order  to  protect  the  pre- 
tended interests  of  that  institution,  the  Pope  should  have  been  left 


PURPOSE    OF   THE    PRESENT   WORK  85 

to  his  temporal  domain,  and,  contrary  to  common  law,  all  political 
liberty  have  been  refused  to  the  Romans. 

This  must  also  be  said  of  the  affirmation  of  the  principles  made 
successively  by  the  French  and  Italian  governments  in  the  matter 
of  the  abolition  of  extra-territorial  rights  at  Massouah  and  Tunis. 

We  have  likewise  stated  the  importance  of  the  custom  by  which, 
as  a  consequence  of  tacit  consent,  the  reciprocal  and  uniform  ob- 
servance of  the  same  rule  of  law  gives  it  the  same  authority  as  a 
rule  established  by  express  consent. 

In  all  period^  custom  has  been  considered  as  one  of  the  factors 
of  positive  law.  In  the  absence  of  a  positive  and  concrete  rule  in  a 
matter  of  law,  it  has  been  considered  reasonable  that  the  matter 
be  governed  by  the  rule  derived  from  common  practice.  This 
principle  has  been  set  forth  by  Albericus  Gentilis  in  his  renowned 
work  on  the  law  of  war,  in  which,  studying  the  sources  from  which 
to  derive  the  rules  of  justice  to  be  observed  during  hostilities,  he 
said:  "Though  one  ought  not  to  judge  according  to  precedent, 
conformably  to  a  very  wise  law  of  Justinian,  nevertheless  it  is  a 
fact  that  precedents  open  the  way  to  probable  conclusions  and  that 
when  in  doubt,  precedents  and  custom  ought  to  furnish  a  guide. 
It  is  certainly  not  expedient  to  change  what  has  become  certain 
and  constant  by  continuous  observance."  ^ 

Grotius  has  likewise  held  that  custom  among  states  ought 
to  be  considered  as  law.  "  Non  negamus,  says  he,  more  vim  pacti 
accipere.^^  ^ 

41.  We  have,  besides,  attributed  great  importance  to  legal  con- 
victions which,  owing  to  the  constant  progress  of  civilization,  have 
progressively^  taken  form  and  developed  within  the  conscience  of 
civilized  peoples. 

It  is  a  fact  which  no  one  would  deny  that  the  community  of 
interests  among  the  inhabitants  of  the  different  countries,  which 
has  resulted  from  the  development  of  international  trade  and 
civilization,  and  the  community  of  their  ideas  as  to  the  conditions 
required  for  the  legal  organization  of  international  society,  have 
caused  the  formation  in  all  civilized  countries  of  certain  uniform 
convictions  as  regards  the  legal  rules  applicable  to  international 

*  Albericus  Gentilis,  Dejure  belli,  chap.  I,  Book  I,  no.  6,  translated  into 
Italian  by  Fiorini. 
« Lib.  II,  cap.  V,  no.  24. 


86  INTERNATIONAL   LAW   CODIFIED  ,j 

i 
society.  These  convictions  no  doubt,  are  neither  proclaimed  nor 
established  through  an  agency  qualified  to  formulate  them;  but 
they  assert  themselves  under  the  form  of  a  popular  sentiment 
which  expresses  the  public  conscience,  which  comprises  and  claims 
the  observance  of  certain  principles  indispensable  for  the  common 
life  of  nations  and  for  the  protection  of  everyone's  rights  in  in-  • 

ternational  society. 

These  principles  have  not  been  solemnly  sanctioned  like  those 
recognized  by  governments  in  treaties  or  enunciated  by  them  in 
diplomatic  acts.  Nevertheless,  they  exercise  a  great  authority, 
having  its  origin  in  the  mysterious  and  unquestionable  force  of 
public  opinion  which  compels  governments  to  observe  principles 
of  justice  in  exact  conformity  with  historical  and  moral  require- 
ments and  which  is  inspired  by  reason  and  universal  conscience. 

In  order  to  be  convinced  of  this  fact,  it  is  merely  necessary  to 
read  the  history  of  diplomacy  and  to  take  account  of  the  acceptance 
by  governments  of  certain  principles  which  have  been  dictated  by  i 

public  opinion,  and  to  refer  to  Chapter  I  of  the  present  work.  We 
shall  here  merely  reiterate  that  popular  legal  convictions  ought  to 
be  the  most  certain  source  of  international  law.  We  have  taken  it 
into  very  considerable  account,  because  the  rules  which  are  in  the 
common  conscience  of  nations  in  intercourse  with  one  another  must 
be  considered  as  the  most  exact  expression  of  certain  moral  needs 
and  of  the  principles  of  social  justice  which  have  developed  with 
the  progress  of  civilization. 

Publicists  engaged  in  determining  the  legal  rules  of  international 
relations  should  therefore  direct  their  special  attention  toward  the 
general  popular  feeling  concerning  these  relations,  a  feeling  which 
reflects  public  opinion.  Public  opinion  is  formed  through  the 
communications  maintained  by  the  press  and  telegraph  between 
the  inhabitants  of  the  various  parts  of  the  world.  It  is  the  final 
result  of  the  development  of  uniform  thoughts  and  sentiments  on 
every  event  which  takes  place  in  both  hemispheres,  on  recipro- 
cal needs  and  interests  and  on  the  common  requirements  of  the 
international  relations  of  states.  Public  opinion  does  not  now  ex- 
ercise its  full  influence  on  international  life,  because  it  has  not  yet 
acquired  its  full  force  and  is  not  yet  properly  represented.  But  we 
feel  sure  that  in  time  it  will  become  the  most  fruitful  source  of  legal 
rules,  which  will  have  to  be  admitted  by  governments  in  the  con" 


PURPOSE    OF   THE    PRESENT   WORK  87 

duct  of  international  relations.  In  proportion  as  public  opinion 
becomes  enlightened,  more  developed  and  united,  it  will  acquire 
greater  authority.^ 

42.  The  most  important  source  of  the  subject-matter  of  the  body 
of  rules  we  have  sj^stematically  collected  in  this  volume,  lies  in  the 
uniform  views  of  the  best  qualified  authors  on  the  legal  rules  of 
international  relations  in  keeping  with  the  present  and  positive 
needs  of  international  society.  We  have  laid  under  contribution 
the  works  of  all  the  jurists  who  have  studied  international  law, 
and  we  could  not  truthfully  state  which  have  contributed  the  most 
to  formulate  our  convictions. 

We  have  especially  studied  the  works  of  Phillimore,-  Calvo,' 
Heffter,^  Wheaton,^  Pradier-Fodcre,^  Lawrence,^  Bluntschli,^  Field,^ 
Woolsey,^"  Halleck,^^  Hall,'-  Rivier,^^  and  Oppenheim.^^ 

*  We  have  always  considered  public  opinion,  developed  and  enlightened  by 
cixdlization,  as  the  principal  factor  in  the  reform  of  international  law. 

On  page  347  of  our  work  published  in  1865,  we  said:  "We  believe  that, 
without  creating  an  armed  tribunal,  the  most  effective  guaranty  must  be 
public  opinion;  it  must  be,  in  our  judgment,  the  aegis  and  guaranty  of  right, 
it  is  the  best  and  most  impartial  of  courts.  We  do  not  advocate  material  con- 
straint among  nations,  but  moral  constraint,  and  the  latter  we  cannot  conceive 
otherwise  than  in  the  mysterious  power  of  public  opinion,  a  power,  however, 
undervalued  because  it  has  not  yet  shown  its  full  force,  but  which  will  prove 
itself  strong  and  all-powerful  when  it  becomes  fully  conscious  of  its  rights." 

Proceeding  with  our  argument  to  oppose  the  idea  of  a  proposed  confedera- 
tion, we  concluded  by  extolling  the  power  of  public  opinion,  expressing  the 
idea  as  follows:  "Just  as  the  principles  of  justice  which  regulate  the  relations 
of  persons  in  private  society,  when  made  clear  to  social  conscience  and  to 
public  opinion  govern  civil  societies,  so  the  principles  of  justice  which  must 
regulate  international  relations  once  they  are  clear  to  national  consciences 
and  public  opinion,  will  regulate  and  govern  international  society." 

2  International  Law,  2d  ed.,  1874. 

^  Le  droit  international  theorique  et  pratique,  1872. 

*  Das  euro'paische  Volkerrechl  der  Gegemvart,  translated  by  Bergson,  1873. 

^  Elements  of  international  law,  New  York,  1836.  Droit  des  gens  mis  au  cou- 
rant  des  prngrbs  du  droit  public  moderne,  trans,  by  Pradier-Foderd,  1863. 

"  Traite  de  droit  international  public  europeen  et  americain,  1885-1894. 

^  Commentaire  sur  les  elhnents  du  droit  international  et  sur  Vhistoire  des  progrhs 
du  droit  des  gens,  de  Wheaton,  Leipzig,  1868-1873. 

*  Das  moderne  Volkerrecht  der  civilisirten  fitaten  als  Rechtsbuch  dargestellt  mil 
Erldulerungen,  translated  by  Lardy. 

^  Outlines  of  an  international  code.  New  York,  1876. 

'"  Introduction  to  the  study  of  international  law,  New  York,  1875. 

^^International  law,  San  Francisco,  1861. 

'^  International  lav),  Oxford,  2d  ed.,  1886. 

'^  Pnncipes  du  droit  des  gens.  1896. 

^*  InternxUional  law,  v.  2,  2d  ed. 


88  INTERNATIONAL  LAW   CODIFIED 

We  have  given  to  legal  history  a  limited  space.  We  cannot,  in- 
deed, draw  much  from  that  source,  for  legal  history  has  often  repre- 
sented occurrences  which  were  due  to  the  abnormal  conditions  in 
which  international  society  was  placed  as  a  result  of  the  tyrannical 
preponderance  of  politics,  and  at  times  has  been  the  accepted  result 
arising  from  necessities  of  fact  at  a  critical  period  in  the  life  of 
peoples. 

As  our  purpose  has  been  to  frame  a  system  of  rules  designed  to 
eliminate  all  arbitrariness  and  to  give  a  legal  organization  to  the 
society  of  states,  it  was  essential  not  to  consider  legal  history  as  a 
trustworthy  source.  In  fact,  in  the  history  of  international  re- 
lations, many  principles  are  accepted  which  are  opposed  to  ra- 
tional law,  and  not  only  is  it  useless  to  translate  the  fact  into  law, 
but  it  is  well  always  to  bear  in  mind  the  rule  of  the  Roman  jurist 
Paul:  "Quod  vero  contra  rationem  juris  receptum  est  non  est  produ- 
cendiim  ad  consequentiam."  ^ 

43.  For  the  division  of  the  subject-matter  of  this  work,  we  have 
been  guided  by  the  following  principles: 

In  order  to  proceed  systematically,  it  was  necessary  in  the  first 
place  to  determine  in  a  general  way  the  concept  of  the  law  which 
must  govern  any  kind  of  relation  which  may  arise  and  develop  in 
international  society,  and  to  fix  that  law;  to  establish  the  basis  of 
its  authority;  to  distinguish  the  various  forms  this  law  may  assume; 
to  establish  the  limit  and  extent  of  its  domain;  and  to  state  pre- 
cisely its  legal  protection.  These  matters  are  the  aim  of  the  rules 
collected  in  the  preliminary  part  under  the  title  of  Fundamental 
Principles. 

Having  determined  and  specified  the  concept  of  international 
law,  we  have  divided  the  remainder  of  the  work  into  four  books,  as 
follows: 

Book  One: — Persons  and  things  subject  to  international  law. 
Book  Two: — International  obligations. 
Book  Three: — Property  as  an  object  of  international  law. 
Book  Four: — Sanctions  of  international  law. 

In  Book  one,  it  has  been  our  purpose  to  determine  who  or  what 
must  be  considered  subject  to  the  authority  of  international  law, 
the  subjectum  juris.  We  have  determined  the  concept  of  the  person 
and  specified  what  must  be  considered  as  a  person.    Yet,  as  there 

» L.  48,  Dig.,  De  Legibus,  I.  3. 


PURPOSE    OF   THE    PRESENT    WORK  89 

are  in  international  society  besides  persons  properly  so  called, 
entities  which,  while  unable  to  assume  the  condition  of  interna- 
tional persons,  must  nevertheless,  in  their  relations  and  actions,  be 
subject  to  the  rules  of  law  which  must  govern  international  so- 
ciety, we  liave  sought  to  determine  their  rights  and  the  legal  rules 
governing  them. 

Inasmuch  as  the  theory  of  rights  must  always  be  complemented 
b}''  the  theory  of  duties,  we  have,  after  having  determined  the  rights 
of  the  state  and  pointed  out  the  rules  which  should  govern  the 
acquisition  and  exercise  of  these  rights,  sought  to  establish  the 
duties  of  states  in  their  reciprocal  relations. 

The  same  principle  has  been  followed  with  regard  to  the  indi- 
vidual and  the  Church,  whose  rights  and  duties  we  have  de- 
fined, and  the  means  of  whose  legal  protection  we  have  es- 
tablished. 

Book  two  refers  to  international  obligations,  which  arise  princi- 
pally from  treaties.  Consequently,  this  book  is  mainly  composed 
of  matters  relating  to  general  and  special  treaties.  In  it  we  have 
also  laid  down  the  rules  which  apply  to  obligations  arising  in  the 
absence  of  agreement. 

Book  three  refers  to  things  and  property  in  their  relations  with 
international  law.  In  it  we  deal  with  common  and  public  things, 
territory,  state  property  and  private  property. 

Book  four  comprises  the  fundamental  principles  which  must 
govern  the  enunciation  and  legal  protection  of  international  law. 
As  regards  such  protection,  we  set  forth  the  principles  applicable 
to  the  settlement  of  disputes  between  states  and  to  the  prevention 
of  such  disputes  and  in  addition,  we  point  out  the  coercive  meas- 
ures legitimate  in  time  of  peace  to  restore  to  violated  law  its 
authority. 

Finally,  we  treat  of  war  as  an  extreme  measure  of  legal  protec- 
tion and  we  lay  down  the  rules  regarding  its  lawfulness,  the  rights 
and  duties  arising  out  of  it  for  belligerents  and  neutrals,  and  we  dis- 
cuss the  exercise  of  the  rights  of  war  and  the  proper  methods  of 
settling  the  difficulties  which  may  arise  out  of  the  exercise  of  these 
rights. 


90  INTERNATIONAL   LAW   CODIFIED 

FUNDAMENTAL  PRINCIPLES 
INTERNATIONAL  LAW  AS  A  SCIENCE 

1.  International  law  is  a  body  of  rules  designed  to  determine, 
govern  and  protect  the  rights  and  duties  of  states,  and  the  rights 
and  duties  of  individuals  and  juristic  persons  in  their  relations 
with  states,  and  among  themselves  whenever  these  relations  af- 
fect or  are  likely  to  affect  the  international  society. 

International  law,  in  its  exact  literal  sense,  would  signify  the  law  which  con- 
cerns the  relations  between  two  or  more  nations.  Thus,  the  term  does  not 
quite  correspond  with  the  idea  it  is  designed  to  convey.  The  expression  Inter- 
state law  could  not,  however,  be  substituted  for  it,  as  it  would  only  indicate 
the  law  concerning  the  relations  between  two  or  more  states;  neither  would  the 
expressions  Law  of  Nations,  Law  of  Humanity  or  Public  External  law  be  ac- 
ceptable. The  most  appropriate  name  for  such  a  law  would  be  the  Law  of 
Mankind,  which  is  the  collective  term,  comprising  all  beings  united  with  one 
another  by  a  common  bond  and  constituting  mankind.  We  prefer,  neverthe- 
less, to  accept  the  term  international  law  sanctioned  by  tradition. 

2.  International  law  may  be  viewed  either  as  rational  or 
positive. 

RATIONAL  LAW 

3.  Rational  international  law  is  the  body  of  legal  rules  which 
the  human  mind  perceives,  infers  or  deduces  from  the  principles 
of  natural  justice  so  far  as  they  govern  the  relations  existing  be- 
tween the  persons  and  beings  existing  in  the  Magna  civitas,  taking 
into  account  their  condition  and  status  and  their  historical  and 
moral  exigencies. 

The  principles  of  natural  justice  exist  in  the  conscience  of  the  people  and 
develop  gradually  with  civilization.  Reason  understands  and  conceives  them 
as  the  rules  of  the  harmonious  development  of  each  relation,  taking  into  ac- 
count the  nature  of  the  relation  itself  and  the  historical  and  moral  exigencies 
of  those  to  whom  it  must  be  applied.  Positive  law  commenced  to  exist  as  a 
rational  precept  or  principle  of  natural  justice  before  assuming  the  form  of 
law. 

The  same  was  true  of  international  law.  The  rational  principles  governing 
international  society,  before  they  became  legal  rules  and  were  accepted  by 
states  as  rules  of  positive  law,  followed  the  law  of  gradual  development  and 
evolution.  Governments  have  not,  as  a  matter  of  fact,  wholly  ignored  the 
binding  force  of  the  principles  of  the  rational  law  of  nations. 

In  1753,  the  British  Government  in  an  answer  to  a  note  of  the  Prussian 


FUNDAMENTAL   PRINCIPLES  91 

Government,  said:  "The  law  of  nations  is  founded  upon  justice,  equity,  con- 
venience, and  the  reason  of  the  thing,  and  confirmed  by  long  usage."  Philli- 
more,  v.  I,  chap.  Ill,  §  20.  See  the  note  of  Great  Britain  to  Russia  in  1780 
and  the  circular  note  of  the  Russian  government  to  the  allied  Powers  in  Fiore's 
Diritto  internazionah  pubblico,  v.  I,  4th  ed.,  §  179.  Cf.  Bluntschli,  Le  Droit 
international  codifie,  Introduction  and  rule  3;  Calvo,  Droit  international,  v.  I, 
Principes;  Renault,  Introduction  a  I'etude  du  droit  international,  §§  1-19. 

Wheaton,  International  law,  chap.  I,  §  11,  defines  international  law  as 
consisting  of  "those  rules  of  conduct  which  reason  deduces  as  consonant  to 
justice  from  the  nature  of  the  society  existing  among  independent  nations; 
with  such  definitions  and  modifications  as  may  be  established  by  general 
consent." 

If  the  precepts  of  natural  justice  were  not  to  exercise  any  authority  over 
the  conduct  of  states,  it  would  result  rather  absurdly  in  excluding  the  legal 
community  uniting  them  in  cases  where  the  rules  of  their  conduct  are  not 
fixed  by  treaty. 

4.  Any  rule  will  be  considered  as  conforming  with  the  principles 
of  rational  law  which  is  admitted  by  philosophers,  scientists, 
publicists,  statesmen  or  by  governments  in  their  diplomatic  acts, 
and  especially  those  concerning  which  popular  legal  convictions 
have  been  formed. 

The  basis  of  this  rule  is  the  idea  expressed  by  Albericus  Gentilis,  that  true 
philosophers  and  scientists  are  accustomed  to  reason  according  to  natural  law 
{De  jure  belli,  lib.  I,  cap.  I,  §  5).  That  rule  was  later  accepted  in  a  broader 
sense  by  Grotius,  who  based  the  rules  of  the  law  of  nations  on  the  universal 
agreement  of  philosophers,  historians,  poets  and  orators. 

Vice  considered  popular  legal  convictions  as  the  principal  source  of  the 
law  of  nations.  He  said  in  effect:  "As  a  result  of  the  union  of  several  nations 
of  different  language  in  common  thought,  by  reason  of  wars,  alliances  or  trade, 
the  natural  law  of  mankind  is  the  outgrowth  of  uniform  ideas  among  all  nations 
on  the  needs  and  utility  of  each  of  them."  See  his  pamphlet  entitled  Principii 
di  una  scienza  nuova  intorno  alia  natura  delle  nazioni,  per  le  quali  si  ritrovano 
allri  -principii  del  diritto  naturale  delle  genti  (Edition  of  12  folios  printed  at 
Naples  by  Felice  Mosca  in  1725). 


POSITIVE  LAW 

5.  Positive  international  law  is  the  law  expressly  established 
by  the  common  will  of  states  entering  into  certain  relations,  these 
states  having  agreed,  expressly  or  tacitly,  to  subject  these  relations 
to  certain  legal  rules  which  have  been  duly  ratified  in  accordance 
with  municipal  constitutional  law. 

6.  The  law  established  by  custom,  resulting  from  the  constant 
and  unequivocal  observance  by  two  or  more  states  of  a  certain 


92  INTERNATIONAL  LAW   CODIFIED 

rule  concerning  matters  of  common  interest,  constitutes  a  part  of 
positive  law. 

7.  A  rule  established  by  a  state  by  unilateral  act,  which  relates 
to  questions  of  international  interest,  must  in  like  manner  be 
considered  as  a  rule  of  positive  international  law.    C/.  rule  30. 

Any  state  may  lay  down  by  unilateral  act  certain  rules  of  international  law, 
which  have  authority  as  municipal  law  and  an  imperative  value  so  long  as  they 
are  in  force.  These  rules  constitute  part  of  positive  international  law,  since 
90  long  as  they  are  not  legally  abrogated,  they  must  be  applied  in  the  cases 
they  contemplate.  The  sovereign  state  which  enacted  them  is  always  at 
liberty,  however,  to  abrogate  them. 

There  are  numerous  examples  of  rules  of  positive  international  law  estab- 
lished by  unilateral  act. 

Some  of  the  rules  appearing  in  the  draft  of  the  laws  of  war  proposed  by  the 
Conference  of  Brussels  have  been  accepted  by  various  states  by  unilateral  act, 
that  is  to  say,  by  the  service  regulations  in  time  of  war  binding  upon  their  own 
armies. 

The  inviolability  of  private  property  during  maritime  war  is  recognized, 
subject  to  reciprocity,  by  the  Italian  law  in  article  211  of  the  Code  of  the  mer- 
chant marine,  which  reads  as  follows:  "The  capture  and  seizure  of  merchant 
ships  of  a  hostile  nation  by  the  war  vessels  of  the  state  shall  be  abolished, 
subject  to  reciprocity,  by  the  enemy  nation,  to  the  national  merchant  marine." 

8.  International  positive  law  is  divided  into  common  and  particu- 
lar or  special  law. 

COMMON   POSITIVE   LAW 

9.  Common  positive  law  consists  of  the  legal  rules  solemnly 
formulated  by  the  states  assembled  in  congress  or  conference  by 
means  of  general  treaties,  by  which  they  have  expressly  agreed  to 
consider  the  rules  established  as  the  law  governing  certain  specific 
relations  and  matters,  provided,  however,  that  the  treaties  in 
question  are  duly  ratified. 

States  cannot  be  subject  to  any  one  exercising  over  them  the  authority  of  a 
legislator.  The  principle  of  legal  equality  is  absolutely  opposed  to  the  doctrine 
that  any  one  of  them  may  dictate  the  law  to  the  others.  Therefore,  it  is  for 
the  states  to  formulate  and  fix  in  common  accord,  the  rules  governing  their 
reciprocal  relations  and  to  recognize  the  binding  force  of  these  rules,  which 
acquire  the  authority  of  law  for  the  ratifying  states  by  virtue  of  the  consensus 
gentium.  The  common  international  law  consecrated  by  general  treaties  con- 
cluded by  a  considerable  number  of  states  is  constantly  growing. 

We  may  mention  among  others  the  international  convention  for  the  protec- 
tion of  industrial  property  of  March  20,  1883;  the  treaty  for  the  development 
of  commerce  and  civilization  in  Africa,  of  February  26,  1885;  the  convention 


FUNDAMENTAL    PRINCIPLES  93 

for  the  protection  of  literary  and  artistic  property,  of  September  9,  1887;  the 
convention  for  the  free  navigation  of  the  Suez  Canal,  of  October  29,  1888;  the 
general  anti-slavery  act  of  July  2,  1890;  and  the  regulations  to  avoid  collisions 
at  sea,  of  December  13.  1896.  We  shall  refrain  from  citing  other  conventions 
relating  to  transportation  by  rail,  health  regulations,  and  land  and  naval 
warfare.    (First  Hague  Conference  of  1899.) 

10.  The  rules  of  common  law  established  by  means  of  trea- 
ties have  the  force  of  law  for  the  signatory  and  adhering  states 
from  the  date  of  ratification  and  adhesion  respectively. 


PARTICULAR   POSITIVE    LAW 

11.  Particular  positive  law  is  the  body  of  rules  established  be- 
tween two  or  more  states  by  a  treaty  concluded  and  ratified  on 
matters  of  their  own  particular  interest.  The  same  effect  may  be 
attained  through  the  constant  and  reciprocal  observance  of  a 
certain  legal  rule. 

RULES   ACCORDING    TO    THE    "COMITAS   GENTIUM " 

12.  A  rule  may  be  considered  as  based  on  the  comitas  gentium, 
if  it  cannot  be  considered  as  established  in  accordance  with  pos- 
itive international  law,  or  based  on  the  principles  of  natural  or 
rational  justice,  but  is  founded  on  certain  usages  conforming  with 
the  reciprocal  convenience  of  states  and  on  their  friendly  relations, 
when  these  usages  are  not  in  conflict  with  positive  international 
law. 

The  rules  of  the  comitas  gentium  are  the  only  ones  which  must  be  considered 
as  based  on  international  courtesy.  They  tend  to  strengthen  the  relations  of 
friendship  and  good  will  and  are  inspired  by  practical  utility  and  political 
con.siderations.  Such  are,  for  instance,  the  rules  observed  on  the  occasion  of 
the  visit  of  sovereigns  and  reception  of  diplomatic  agents.  The  same  is  true 
of  the  usages  established  in  consequence  of  civilization.  The  observance  of 
the  rules  of  comitas  gentium  may  be  considered  as  a  moral  duty  among  stat(>s. 
These  nile.s,  however,  are  different  from  those  which  may  be  considered  as 
based  on  moral  precepts. 

13.  Any  state  which,  oh  comitatem,  has  voluntarily  observed 
certain  rules  of  conduct  towards  another  state,  may  request  the 
latter  to  put  in  practice  the  rule  of  reciprocity  under  the  same 
circumstances,  but  cannot  lay  claim  to  a  perfect  right  in  that 
respect. 


94  INTERNATIONAL  LAW   CODIFIED 


RULES  BASED  ON   MORAL  PRECEPTS 

14.  The  observance  of  every  provision  which  may  be  considered 
as  based  upon  moral  law  may  be  deemed,  obligatory  upon  states, 
but  the  execution  of  these  provisions  must  be  considered  as  a  moral 
obligation. 

15.  States  should  be  disposed  to  assist  one  another;  to  act 
reciprocally  with  kindness;  to  co-operate  in  the  protection  of  gen- 
eral interests  whenever  it  can  be  done  without  causing  any  direct 
or  indirect  injury  to  national  prosperity. 

16.  It  is  the  duty  of  civilized  states  to  spread  civilization  among 
barbarous  and  uncivilized  peoples  by  every  lawful  means,  but 
without  violating  the  rules  of  international  law. 

These  rules  tend  to  establish  the  authority  of  moral  law  in  the  relations  of 
international  life.  We  believe  that  the  precept  of  Ulpian,  honeste  viuere,  which 
indicates  morality  as  the  supreme  principle  of  life  and  tends  to  bring  to  realiza- 
tion the  most  perfect  development  of  every  activity,  should  be  applied  among 
states  as  well  as  among  individuals.  We  recognize,  however,  that  it  will  be 
many  years  before  the  international  life  of  states  achieves  that  desirable  result. 
So  long  as  utility  and  egoistic  interest  prevail  in  international  politics,  and 
every  noble  sentiment  of  humanity  is  subordinated  to  these  motives,  it  will 
be  very  difficult  to  bring  about  the  reign  of  moral  principles. 

Nevertheless,  the  countries  enjoying  the  advantages  of  a  superior  civiliza- 
tion do  not  wholly  disregard  the  authority  of  moral  precepts.  The  measures 
already  adopted  toward  the  abohtion  of  slavery,  the  repression  of  the  slave 
trade,  the  civilization  of  Africa,  the  assistance  and  care  of  the  wounded  in 
time  of  war,  the  prevention  of  contagious  diseases,  are  consequences  of  the 
realization  of  the  moral  duties  which  have  inspired  them,  so  as  gradually  to 
transform  these  duties  into  legal  obligations.  The  domain  of  moral  duties 
will  always  be  more  extensive  than  that  of  legal  duties;  for,  as  Bentham  has 
said,  law  will  always  have  the  same  center  as  morals,  but  can  never  have  the 
same  circumference  {Traite  de  legislation  civile  ct  penale,  v.  I,  ch.  XII,  p.  93). 
Hence  it  follows  that  there  will  always  exist  among  states,  in  addition  to  legal 
duties,  moral  duties.  Non  onme  quod  licet  honestum  est.  It  will  be  for  civiliza- 
tion to  make  evident  the  precepts  of  international  morals  and  for  the  most 
progressive  states  to  recognize  their  binding  force.  Cf .  the  rules  of  title  IX, 
book  I. 

BINDING    FORCE   OF   RATIONAL   LAW 

17.  The  rules  of  rational  law  have  the  same  binding  force  as  the 
principles  of  rational  justice. 

18.  Any  state  which  intends  not  to  disregard  the  imperative 
force  of  the  precepts  of  rational  justice,  must  be  considered  as 
bound  to  observe  them  in  its  relations  with  other  states. 


FUNDAMENTAL   PRINCIPLES  95 

19.  Above  all,  it  is  incumbent  on  a  civilized  state  always  to  con- 
sider as  binding,  in  regard  to  any  fact  or  relation  affecting  interna- 
tional society,  the  rule  most  conformable  to  the  rational  principles 
of  international  law,  with  due  regard  to  the  circumstances,  which 
must  be  carefully  ascertained  and  considered. 

The  two  preceding  rules  are  designed  to  eliminate  the  erroneous  idea  that 
whatever  cannot  be  considered  as  estabhshed  by  solemn  agreements  con- 
tracted by  states,  under  the  stipulations  of  treaties  or  otherwise,  may  be 
deemed  within  the  domain  of  their  freedom  of  action,  and  that,  consequently, 
any  one  may  or  may  not  comply  with  the  rules  of  justice,  and  that  the  spon- 
taneous observance  of  such  rules  must  be  considered  as  an  act  of  courtesy,  oh 
comitatein. 

Certain  authors  have  based  upon  this  inaccurate  notion  the  contention  that, 
in  the  absence  of  a  general  or  special  treaty,  which  is  no  doubt  the  most  perfect 
legal  title  from  which  to  derive  the  reciprocal  legal  right  and  duty  to  require 
the  observance  of  stipulated  rules,  each  state  may  or  may  not,  as  it  chooses, 
respect  international  law,  and  that  the  respect  of  that  law  must  be  considered 
as  suggested  bj^  the  comitas  gentium. 

See,  to  that  effect,  Foelix,  Traite  de  droit  international  prive,  chap.  Ill,  nos. 
9,  11,  v.  I;  Travers  Twiss,  The  law  of  nations,  Part  I,  chap.  I,  §  13. 

We  believe  that  among  states,  the  perfect  duty  is  that  which  corresponds 
to  the  right  of  one  state  to  require  the  other  to  give,  to  do  or  to  perform  that 
which  it  has  agreed  to  give,  do  or  perform.  Nevertheless,  we  cannot  admit 
that,  in  the  absence  of  the  perfect  obligation  arising  from  treaties,  everything 
may  be  considered  as  within  the  domain  of  liberty  of  action,  and  that  respect 
for  the  precepts  of  rational  justice  may  not  be  obligatory,  but  optional,  and 
constitutes  an  act  of  mere  courtesy.  We  beheve,  on  the  contrary,  that  it  is 
incumbent  on  states  to  acknowledge  the  requirements  of  rational  justice,  and 
that  the  observance  of  these  principles,  far  from  being  an  act  of  courtesy,  is 
the  performance  of  a  natural  duty.  These  principles  have  in  some  degree  been 
recognized  by  the  five  great  European  Powers  at  the  Congress  of  Aix-la- 
Chapelle,  in  the  declaration  of  November  15,  1818,  which  reads:  "The  sover- 
eigns, in  forming  this  august  union,  have  considered  as  a  fundamental  basis 
their  invariable  resolution  never  to  depart,  either  among  themselves  or  in 
their  relations  with  other  states,  from  the  most  rigid  observance  of  the  prin- 
ciples of  the  law  of  nations,  principles  which,  being  applied  to  a  permanent 
state  of  peace,  can  alone  guarantee  effectively  the  independence  of  each 
government  and  the  stability  of  the  general  association." 

RATIFICATION 

20.  Ratification  is  the  approval  or  confirmation  of  what  has 
been  done  or  promised,  executed  in  an  authentic  and  official  man- 
ner by  the  government  of  each  country,  according  to  the  constitu- 
tion.   It  is  required  for  international  acts  and  treaties. 

21.  The  right  to  ratify,  in  monarchies,  resides  in  the  ruler, 
either  alone  or  with  the  concurrence  of  delegates  from  the  national 


90  INTERNATIONAL   LAW   CODIFIED 

representative  assemblies;  in  republics,  it  resides  in  the  chief 
executive,  with  the  direct  or  indirect  concurrence  of  one  of  the 
great  branches  of  the  government,  determined  by  the  constitution. 

22.  Ratification  must  relate,  as  a  rule,  to  the  act  as  a  whole  as 
drawn  up  and  signed  by  the  states'  plenipotentiaries  and  cannot 
contain  any  reservation.  It  must  be  made  by  each  of  the  con- 
tracting parties  and  must  reproduce,  word  for  word,  the  act  which 
it  is  intended  to  ratify.  The  parties,  however,  may  follow  by 
common  agreement  a  different  course.  Each  may  limit  itself  to 
transcribing  the  title,  the  preamble,  the  first  and  the  last  articles 
of  the  treaty,  the  date  of  the  signature  and  the  names  of  the  signa- 
tory plenipotentiaries,  affixing  the  ratification,  however,  without 
reservation. 

23.  The  ratification,  signed  by  the  persons  necessary  for  its 
validity,  is  effective  only  when  the  exchange  takes  place  between 
the  contracting  parties.  Such  exchange  does  not  require  sovereign 
full  powers;  it  may  be  entrusted  to  a  delegate  of  each  of  the  govern- 
ments concerned  or  to  the  diplomatic  agent  accredited  to  the 
country.  It  is  only  after  such  formal  act  has  been  complied  with 
and  duly  recorded,  that  the  treaty  becomes  fully  operative  and 
that  the  term  assigned  for  its  duration  commences. 

24.  Refusal  to  ratify  on  the  part  of  one  of  the  contracting  par- 
ties implies,  ■per  se,  with  respect  to  such  party,  the  annulment  of 
the  treaty  signed  by  its  representative. 

BINDING   FORCE    OF   POSITIVE   LAW 

25.  The  rules  of  positive  common  law  established  by  general 
treaty  have  the  authority  of  law  for  the  states  which  signed  and 
ratified  them,  as  well  as  for  states  legally  adhering  thereto. 

26.  None  of  the  parties  which  have  signed  and  ratified  a  general 
treaty  may  avoid  the  obligation  to  observe  the  rules  therein  sanc- 
tioned, nor  at  will  modify  its  scope,  as  no  modification  is  valid 
except  by  consent  of  all  the  contracting  parties. 

This  maxim  is  based  on  the  idea  that  the  solemn  recognition  of  a  legal  rule  bj' 
civilized  states,  which  have  established  it  by  common  agreement  and  recorded 
it  later  in  a  protocol  or  treaty  subscribed  and  ratified  by  them,  or  to  which 
they  subsequently  adhered,  must  clothe  such  rule  with  the  authority  of  law, 
and  place  it  under  the  protection  of  the  states  which  have  proclaimed  and 
ratified  it.    A  state  which,  after  having  recognized  the  authority  of  a  certain 


FUNDAMENTAL   PRINCIPLES  97 

law,  afterwards  ceases  to  observe  it  with  regard  to  any  one  of  the  signatory 
states,  not  only  infringes  upon  the  right  of  the  state  to  whose  detriment  the 
violation  has  occurred,  but  is  contrary  to  the  right  of  all  the  signatory  parties, 
because  the  obligation  to  respect  a  certain  rule  must  be  considered  as  having 
been  undertaken  toward  all  the  contracting  parties. 

The  aforesaid  maxim  on  the  obligatory  force  of  general  treaties  was  formu- 
lated in  the  declaration  made  by  the  delegates  to  the  London  Conference  of 
January  17,  1871. 

See  also  the  rules  on  the  legal  protection  of  "common"  law,  rule  47  et  seq.: 
the  speech  of  Cobden,  v.  II,  p.  300,  and  Fiore,  Dir.  internazionale  pubblico, 
V.  1,  4th  ed.,  §§  570-72. 

27.  The  rules  of  positive  law  established  in  a  treaty  must  be 
deemed  obligatory  upon  the  parties  ratifying  or  adhering  to  it, 
until  the  treaty  is  solemnly  abrogated. 

If,  however,  in  the  treaty  proper,  it  is  expressly  stipulated  that 
each  party  has  the  power,  on  its  own  part,  to  release  itself  from 
the  binding  force  of  the  treaty  by  a  declaration  duly  notified  to  the 
other  parties,  its  binding  force  would  cease  for  the  declaring  state 
from  the  day  such  declaration  was  duly  and  legally  notified. 

28.  The  rules  of  particular  positive  law  shall  be  binding  between 
the  states  which  subscribe  and  ratify  the  treaty,  so  long  as  the 
treaty  shall  be  deemed  in  force. 

29.  The  rules  of  positive  law  established  by  custom  shall  con- 
tinue in  force  so  long  as  a  contrary  custom  is  not  proved. 

30.  The  rules  of  international  law  laid  down  by  a  state  by  uni- 
lateral act  shall  be  binding  until  legally  repealed. 

The  rules  of  international  law  established  by  unilateral  act  have  to  a  large 
extent  the  same  character  as  those  established  by  a  municipal  law.  Hence  the 
state  which,  through  its  constituted  powers,  has  legally  proclaimed  those 
rules,  must  be  considered  as  bound  toward  the  other  states;  that  is,  it  must 
see  that  they  are  impartially  observed  so  long  as  they  have  not  been  legally 
repealed. 

Any  state  may  as.sume  an  international  obligation  through  unilateral  act 
(law,  manifesto,  diplomatic  note  and  similar  acts)  and  although  it  cannot  exa(^) 
roci|>rocal  treatment  fioni  the  other  states,  j'et  it  must  consider  itseK  as  bound 
toward  them  by  its  own  action. 

A  striking  example  of  this  is  found  in  the  Italian  law  relating  to  the  jireroga- 
tives  of  the  Pope  and  of  the  Holy  See,  promulgated  May  13,  1871.  Italy  pro- 
claimed thereby  the  rights  of  the  Pope  and  sought  to  assure  his  independence 
as  head  of  the  Catholic  Church.  We  cannot  share  the  opinion  which  considers 
that  law  as  having  established  a  kind  of  international  servitude  in  the  sense 
that  Italy,  which  had  a.ssumed  the  obligation  on  the  one  hand,  having  thus 
[)rf)vided  for  ihc  indei)endenceof  thePope,  and  the  other  states  which  have  the 
right  to  protect  the  interests  of  their  (Jatholic  subjects  having  accepted  tiie 
hiw  w  ithout  protest  or  reservation  on  the  other  hand,  Italy  thereby  undertook 


98  INTERNATIONAL  LAW    CODIFIED 

a  tacit  international  obligation  to  maintain  the  law  regarding  the  prerogatives 
of  the  Pope. 

We  consider  this  law  in  fact  as  a  municipal  law  which,  as  such,  may  be  freely 
modified  by  the  Italian  legislature,  without  possible  control  by  any  other 
states.  We  recognize  the  fact,  however,  that  political  wisdom  and  foresight 
should  always  restrain  the  Italian  government  from  interfering  with  that  law. 
While  it  is  true  that,  when  promulgated,  all  governments  recognized  it  as  de- 
signed to  assure  the  independence  and  liberty  of  the  Pope,  it  is  not  certain  that 
it  would  be  so  recognized  if  amended  or  repealed.  Undoubtedly,  the  other 
states  could  not  impair  the  legislative  autonomy  of  the  Italian  government,  but 
unquestionably,  just  as  they  have  the  right  to  protect  the  legitimate  interests 
of  their  Catholic  citizens,  and,  consequently,  the  free  constitution  of  the 
Church  to  which  the  latter  belong,  so  they  could  criticize  the  new  law  as  not 
assuring  complete  independence  to  the  supreme  head  of  the  Catholics. 

We  do  not  think  it  necessary  to  dwell  longer  on  this  question,  for  it  does 
not  seem  probable  that  Italy  will  be  so  imprudent  as  to  modify  the  law  under 
consideration.  Therefore,  considering  the  actual  condition  of  affairs,  it  must 
be  admitted  that  Italy  has,  by  virtue  of  that  law,  assumed  the  international 
obligation  to  observe  it  and  to  see  that  it  is  observed  as  long  as  it  is  in  force, 
and  that  she  would  incur  an  international  responsibility  in  case  of  its  arbitrary 
violation. 

Another  example  is  found  in  the  army  regulations  in  time  of  war,  in  which 
Italy  has,  by  unilateral  act,  established  the  rules  of  international  law  to  be 
observed  by  the  Italian  army  during  the  war.  So  long  as  these  regulations 
remain  in  force  they  will  be  internationally  binding,  and  the  responsibility  for 
their  non-observance  will  naturally  fall  on  the  Italian  government. 

31.  Rules  of  international  law  based  on  the  comitas  gentium  have 
no  binding  force;  no  state  can  compel  another  to  comply  with 
them,  nor  consider  their  non-observance  as  an  unfriendly  act. 
Retorsion  may,  however,  be  considered  legitimate. 


APPLICATION  OF  INTERNATIONAL  LAW 

32.  The  rules  of  international  law  must  in  principle  be  applied 
by  assigning  to  them  the  meaning  deduced  from  the  proper  accep- 
tation of  the  words  according  to  their  context  and  to  the  clear  and 
evident  intention  of  the  parties. 

33.  No  state  may  claim  that  the  rules  of  international  law  should 
be  so  applied  as  to  better  its  condition  to  the  detriment  of  others. 

34.  The  state  which,  in  asserting  its  rights,  has  insisted  that  the 
rules  of  international  law  should  be  applied,  cannot  afterwards 
request  that  the  rules  so  invoked  shall  not  be  applied,  so  far  as  it 
is  concerned,  in  its  disputes  with  other  states,  in  the  manner  it 
has  itself  established. 


FUNDAMENTAL    PRINCIPLES  99 

The  basis  of  this  rule  is  the  precept  of  Roman  hiw,  quod  quisque  juris  in 
alterum  statiierit,  ipse  eodem  jure  utatur  (L.  I,  §  I,  Dig.  II,  2).  A  state  which 
has  obtained  a  decision  by  invoking  the  application  of  a  rule  of  law  in  its 
favor,  must  allow  such  rule  to  be  applied  in  the  same  way  against  it. 

Compare  the  law  I,  §  1,  Dig.,  Quod  quisque  juris,  with  the  arguments  of  the 
law  5,  Cod.,  De  ohligationihus  quod  semel  placuit  amiplius  displicere  nequit. 

35.  A  state  may  demand  tliat  the  rules  of  internatiotial  law  be  so 
applied  as  to  favor  it  when  they  do  not  injure  others. 

This  rule  is  based  on  the  adage;  quod  tibi  non  nocel,  alteri  vero  prodest,  non 
est  denegavdum. 

36.  The  rules  of  positive  international  law  must  be  applied  in 
such  a  way  as  to  insure  not  only  the  fulfillment  of  their  purpo.se, 
but  of  that  which,  in  the  very  nature  of  things,  must  be  considered 
necessary  to  legitimately  attain  that  object. 

This  rule  is  based  on  the  precept  of  Roman  law:  qui  voluit  finem  et  ea  vohiisse 
creditur  qum  ad  illud  honeste  consequendum  sunt  neccssaria. 

37.  In  applying  the  rules  of  international  law,  the  good  faith  of 
those  who  established  them  should  always  be  presumed,  and  it 
should  be  conceded  that  none  of  the  parties  intends  to  transfer  to 
another  more  than  it  may  own  according  to  common  law  and  the 
nature  of  things. 

38.  The  rules  of  positive  law  may  be  applied  to  facts  and  rela- 
tions of  the  same  nature,  and  to  similar  cases  and  analogous  ob- 
jects. 

INTERPRETATION 

39.  Rules  of  positive  law  should  not  be  interpreted  according 
to  the  literal  meaning  of  the  words,  but  according  to  the  intention 
of  the  parties  which  have  formulated  them. 

40.  In  the  interpretation  of  the  rules  of  positive  law,  that  which 
leads  to  a  useful  result  and  excludes  the  useless  should  be  pre- 
ferred. 

41.  The  rules  of  positive  law  should  be  interpreted  in  such  a  way 
as  to  best  insure  the  respect  of  the  rational  principles  of  interna- 
tional law  and  to  exclude  the  patent  violation  of  such  principles. 

42.  Rules  implying  a  restriction  of  the  free  excM'cise  of  the 
natural  rights  of  states  or  admitting  of  a  derogation  from  the  rules 
of  common  law,  should  be  interpreted  restrictively,  without  being 


100  INTERNATIONAL  LAW   CODIFIED 

extended   beyond  the  cases  indicated  and   the  periods  of  time 
stated. 

SCOPE    OF   INTERNATIONAL   LAW 

43.  International  law  must  be  considered  as  the  common  law 
of  mankind  and  should  be  respected  and  applied  with  a  view  to 
bringing  about  the  legal  organization  of  society. 

Mankind  is  the  collective  term  including  and  coinpriying  all  beings  taken 
individually  or  collectively,  living  in  the  society  of  societies  known  as  humanity. 

No  human  being,  whether  he  be  an  individual  like  man  or  a  legal  entity  or 
group  (that  is  to  say,  one  arising  from  the  co-existence  of  a  large  or  small 
number  of  men  united  by  a  common  cause  or  purpose  or  by  local  contiguity) 
can  be  regarded  as  outside  the  legal  community,  which  is  based  on  human 
nature  and  should  comprise  all  beings  included  in  tlie  term  humanity. 

States  having  active  relations  with  one  another,  primarily  feel  the  need  of 
establishing  a  legal  community.  Nevertheless,  such  community  should  also 
include  the  groups  of  men,  whatever  the  cause  and  object  of  their  association, 
in  so  far  as  this  may  affect  the  legal  organization  of  the  society  of  societies, 
namely,  humanity.  Civilization  and  commerce  constantly  tend  to  bring  the 
inhabitants  of  the  different  parts  of  the  world  into  relations  with  one  another 
and  to  insure  to  all  men  the  respect  of  those  rights  which  belong  to  human 
beings  as  such.  The  ultimate  purpose  of  international  law  should  be  to  estab- 
lish a  legal  regulation  of  every  kind  of  activity  which  may  concern  mankind. 

44.  Any  state  which  enters  into  relations  with  other  states  is 
bound  to  recognize  in  its  actual  relations  with  them,  the  impera- 
tive force  of  international  law,  and  to  consider  that  law  as  the  com- 
mon law  of  the  Magna  civilas. 

45.  International  law  should  be  applied  to  every  state,  without 
regard  to  its  political  constitution  and  religious  faith;  to  every  man, 
whatever  his  race  and  color;  to  every  group  of  men  in  whatever 
country  they  live;  to  every  relation  which  happens  to  arise  in 
any  part  of  the  world,  whenever  by  reason  of  its  nature  or  develop- 
ment that  relation  affects  or  may  affect  international  society. 

Formerly,  the  effect  of  religion  was  to  establish  a  difference  of  legal  status, 
so  that  the  international  law  of  Christian  states  differed  materially  from 
that  of  infidels.  The  Congress  of  Westphalia  dispelled  the  erroneous  idea 
that  religion  could  constitute  the  basis  of  a  difference  of  legal  conditions. 
From  that  time,  the  principle  of  the  legal  community  was  admitted  among 
Christian  states  having  different  religions.  Later,  it  was  thought  that  inter- 
national law  should  be  considered  as  the  law  of  civilized  countries  only,  and 
it  was  called  European  international  law.  At  the  present  day,  no  state  of 
Africa,  Asia  or  other  parts  of  the  world  is  excluded  from  the  legal  community. 
Accordingly,  except  for  certain  limitations  admitted  in  its  application  by 
reason  of  the  historic  and  moral  conditions  of  the  peoples  to  whom  it  is  applied, 


FUNDAMENTAL   PRINCIPLES  101 

international  law  has  extended  its  dominion  over  all  the  inhabitants  of  the 
world  and  has  acquired  its  true  character  as  the  law  of  mankind. 

All  those  constituting  part  of  the  Magna  Cintas  and  among  whom  certain 
relations  exist  should  be  subject  to  the  authority  of  international  law,  which  is 
the  common  law  of  the  Magna  Civitas,  since  that  law  must  govern  intercourse 
among  all  divisions  of  peoples,  and  provide  for  the  legal  organization  of  the 
society  which  comprises  mankind  as  a  whole. 

46.  The  imperative  force  of  international  law,  based  on  perfect 
equality,  should  be  considered  as  in  fact  limited  to  the  states 
among  which,  by  reason  of  their  civilization,  there  should  be  de- 
veloped the  fundamental  legal  principles  indispensable  to  the  ad- 
mission of  the  community  of  law  among  them. 

47.  A  state  which,  owing  to  lack  of  civilization  or  traditional 
prejudices  based  upon  religion,  customs,  political  institutions,  or 
other  cause,  is  actually  unable  to  guarantee  the  respect  and  ob- 
servance of  international  law,  cannot  demand  its  application  with 
perfect  equality  so  long  as  it  is  not  internally  so  organized  as  to  be, 
in  a  measure,  on  the  same  footing  with  other  states. 

It  is  an  undeniable  fact  that  the  various  countries  of  the  world  differ  greatly 
according  to  their  degree  of  civilization.  This  explains  the  non-existence  of 
the  de  facto  condition  indispensable  to  a  complete  legal  community  among  all 
the  peoples  which  make  up  mankind.  In  our  opinion,  such  a  community  will 
never  be  brought  to  realization  equally  and  uniformly  with  all  states,  because 
it  will  never  be  possible  for  civilization  to  extend  uniformly  over  all  parts  of  the 
world.  History  shows  us  that  civilization  describes  parabolas,  as  our  eminent 
countryman,  Vico,  tells  us  in  his  profound  studies  on  civilization.  Thus,  it 
follows  that  the  legal  community  may  in  fact  be  considered  as  complete  in 
countries  endowed  with  a  certain  degree  of  culture,  whereas  it  must  indeed  be 
limited  in  other  countries  whose  civilization  is  as  yet  inferior.  However,  just 
as  the  basis  of  the  reciprocal  moral  and  commercial  needs  of  peoples  enlarges, 
so  does  the  domain  of  international  law  gradually  widen. 

48.  It  is  incumbent  upon  civilized  states  to  promote  the  gradual 
development  of  international  law  in  all  parts  of  the  world  so  that 
it  will  govern  the  relations  which  may  be  established  between 
civilized  and  uncivilized  peoples. 


LEGAL  PROTECTION  OF  INTERNATIONAL  LAW 

49.  States  living  in  a  de  facto  society  must  insure  the  respect 
of  international  law  and  restore  its  authority  in  case  of  arbitrary 
violation  by  means  of  appropriate  and  reciprocally  binding  in- 
stitutions and  legal  measures,  in  order  to  avoid  war. 


102  INTERNATIONAL   LAW    CODIFIED 

50.  The  institutions  and  legal  measures  established  by  common 
agreement  with  a  view  to  insuring  the  authority  of  international 
law  must  be  considered  as  under  the  collective  legal  protection 
of  the  states  which  established  them. 

Since,  notwithstanding  the  non-existence  of  a  legitimate  superior  among 
states,  it  is  urgently  necessary  that  the  legal  organization  established  by  agree- 
ment be  maintained  in  its  integrity  and  be  not  violated  with  impunity  by  any 
of  them,  it  must  be  admitted  in  principle,  we  believe,  that  all  the  states  which 
have  established  a  certain  legal  organization  should  be  considered  as  jointly 
and  severally  interested  in  protecting  it  by  all  legal  means.  Therein  lies  the 
justification  of  the  right  of  collective  legal  protection.  Whenever  a  state 
violates  the  rules  of  international  law  in  its  relations  with  another  state,  the 
immediate  damage  arising  from  the  arbitrary  act  not  only  violates  the  right 
of  the  injured  state,  but  also  that  of  all  the  states  jointly  and  severally  inter- 
ested in  the  legal  organization  of  international  society.  That  is  why  the  states 
should  be  given  the  right  to  restore  the  authority  of  the  common  law. 

At  the  Hague  Conference,  certain  useful  institutions  were  created  to  remove 
many  causes  of  war,  and  on  that  matter  we  expressed  our  opinion  in  the 
Appendix  to  volume  one  of  our  Diritto  internazionale  pubblico,  4th  ed.  (Union 
Tipografica-Editrice,  Turin,  1904).  It  cannot  be  claimed,  however,  that  the 
idea  of  legal  protection  has  been  given  much  thought  by  the  various  govern- 
ments. It  would  be  necessary  in  the  first  place  for  each  one  to  understand 
the  common  reciprocal  usefulness  of  maintaining  the  authority  of  law  in  the 
society  of  societies.  At  the  present  time,  every  state  is  actuated  with  the 
egoistic  desire  of  protecting  its  own  interests.  We  are  convinced,  however, 
that  in  the  course  of  time  it  will  be  better  understood  that  the  legal  organiza- 
tion of  international  society  is  strictly  connected  with  the  existence  and  the 
moral  and  material  prosperity  of  the  states  belonging  to  it. 

51.  Civilized  states  may  have  recourse  to  any  legitimate  form  of 
influence  which  will  induce  the  majority  of  states  to  recognize 
and  observe  the  legal  institutions  and  measures  to  which  they  have 
agreed. 

This  rule  tends  increasingly  to  enlarge  the  domain  of  law,  and  to  promote 
the  progress  of  civilization,  which  can  exercise  its  full  influence  only  when 
law  becomes  the  sovereign  of  the  world.  We  do  not  believe,  however,  that 
such  result  will  ever  be  reached,  because  civilization  is  constantly  describing 
its  parabolas  and  is  subject  to  the  law  of  ebb  and  flow.  Be  that  as  it  may, 
we  believe  that  the  institutions  and  measures  designed  to  prevent  war  and  to 
affirm  the  authority  of  law,  will  be  established  gradually,  in  proportion  as 
the  domain  of  civilization  enlarges. 

52.  States  establishing  particular  rules  of  law  with  one  another 
by  means  of  conventions,  may  also  agree  upon  special  measures 
to  insure  their  respect,  provided,  however,  that  such  measures  be 
permitted  by  and  be  not  contrary  to  international  law. 


FUNDAMENTAL   PRINCIPLES  103 

53.  The  rules  of  international  law  based  on  the  comitas  gentium 
must  be  observed  for  reciprocal  utility.  The  state,  to  whose  det- 
riment they  are  disregarded,  cannot  have  recourse  to  legal  meas- 
ures to  compel  their  respect  by  the  other  party;  it  may  only  re- 
quest the  explanations  to  which  it  is  entitled  and  exercise  a  right 
of  retorsion  in  case  of  non-observance  without  justifiable  reason. 

Retorsion  is  a  legitimate  coercive  measure  in  time  of  peace;  it  is  a  political 
expedient  to  compel  the  state  against  which  it  is  directed  to  cease  injuring 
another  state  in  order  to  avoid  more  serious  measures. 

THE   SCIENCE   OF  INTERNATIONAL  LAW 

64.  The  object  of  the  science  of  international  law  is  to  study  the 
nature  of  the  relations  which  are  formed  among  the  states  and  those 
which  arise  among  the  persons  and  legal  entities  co-existing  in  the 
Magna  dvitas,  and  to  select  the  facts  which  may  concern  the 
international  society.  It  must  search  for,  determine  and  formulate 
the  legal  rules  best  adapted  to  govern  such  relations  and  facts. 

55.  It  is  incumbent  on  the  scholar  to  follow  the  philosophic- 
historical  method  and  to  make  use  of  induction  and  deduction, 
in  order  to  discover  in  the  legal  organization  of  international  so- 
ciety, in  the  past  and  in  the  present,  the  point  of  departure  for 
amelioriating  the  law  which  must  govern  that  society  in  the  future. 

The  law  best  adapted  to  govern  human  society  must  necessarily  have  its 
historical  evolution,  since  the  development  of  any  form  of  activity  determines 
new  moral  exigencies  and  constantly  extends  the  sphere  of  law.  Consequently, 
po.sitive  laws  in  general  can  not  be  absolute  and  permanent,  but  must  be  modi- 
fied and  adapted  to  new  historical  and  moral  conditions,  so  as  to  obtain  the 
best  and  avoid  the  worst  ends. 

These  principles  must  find  their  application  even  with  regard  to  the  laws 
best  suited  to  govern  international  society,  which  is  subject  to  the  force  of 
constant  progress.  Therefore,  it  is  the  duty  of  scholarship  to  search  for  and 
determine  the  legal  rules  best  adapted  to  new  historical  conditions. 


BOOK  ONE 

PERSONS  AND  MORAL  ENTITIES  SUBJECT  TO  IN- 
TERNATIONAL LAW 


TITLE  I 
PERSONS  AND  THEIR  INTERNATIONAL  RIGHTS 

WHO   IS  A   PERSON? 

56.  Every  being  or  entity  must  be  deemed  a  person  in  interna- 
tional society  who  possesses  jure  suo  individuality,  liberty  and  the 
ability  to  act  in  the  Magna  civitas,  and  who  has  the  right  to  re- 
quest in  his  relations  with  other  beings  or  entities  the  application 
of  international  law. 

The;  substantial  characteristics  of  a  person  are  individuality,  will,  freedom 
and  the  ability  to  maintain  legal  relations  or  connections  with  other  beings 
who,  possessing  Uke  characteristics,  belong  to  the  same  de  facto  society.  Now, 
as  we  see  it,  in  order  for  a  being  to  be  considered  as  a  person  of  the  Magna 
civitas,  it  is  indispensable  that  he  be  possessed  of  individuality  jure  suo,  as 
well  as  of  will,  freedom  and  the  capacity  to  enter  into  legal  relationship  with 
other  beings  who  are  members  of  the  international  society. 

We  believe  it  to  be  indispensable  that  individuality  be  his  jure  suo,  because, 
otherwise,  he  could  not  demand  or  vindicate  his  rights  in  his  own  name,  nor 
require  respect  for  them  as  against  all  the  world,  nor  invoke  in  his  relations 
with  other  beings  who  possess  the  same  characteristics  and  legal  condition,  the 
application  of  international  law. 

There  are  certain  entities  endowed  also  with  the  will,  liberty  and  faculty 
to  act  and  exercise  their  own  rights,  but  to  whom  individuality  belongs  not 
jure  suo  but  only  by  virtue  of  the  territorial  law  and  power  of  the  State.  Such 
are  the  associations  and  groups  of  men  organized  for  a  certain  civil  or  social 
object,  to  whom  personality  is  assigned  by  an  act  of  the  State  giving  them 
the  character  of  juridical  persons  or  corporations.  They  may  also  exercise  a 
sphere  of  action  beyond  the  limits  of  the  territory  in  which  they  have  obtained 
personality,  but  they  cannot  take  advantage  jure  suo  of  the  right  to  act  as 
persons,  and  to  exercise  as  such  their  rights  in  international  society,  for  the 
personality  which  they  hold  from  the  State,  being  a  legal  fact  essentially 
territorial,  makes  them  necessarily  territorial  persons,  but  not  international 
persons.    Their  personality  docs  not  exist  in  effect  ^ar^  .suo  in  all  parts  of  the 

105 


106  INTERNATIONAL  LAW   CODIFIED 

universe,  but  is  subordinated  to  a  previous  recognition  by  the  government  at 
the  head  of  each  state.  Therefore,  in  our  opinion,  the  legal  persons  who  may, 
by  reason  of  that  recognition  acquire  the  faculty  to  develop  their  activity  in 
the  Magna  civilas,  cannot  on  that  account  be  considered  as  persons  of  the 
international  society.  Accordingly,  townships,  provinces,  corporations,  in- 
dustrial and  commercial  societies,  even  when  they  may  under  certain  circum- 
stances exercise  their  activity  in  foreign  countries,  cannot  for  that  reason 
assume  the  status  of  international  persons. 

THE   STATE   IS   A   PERSON 

57.  The  State  is  an  association  of  a  considerable  number  of  men 
living  within  a  definite  territory,  constituted  in  fact  as  a  political 
society  and  subject  to  the  supreme  authority  of  a  sovereign,  who 
has  the  power,  ability  and  means  to  maintain  the  political  organi- 
zation of  the  association,  with  the  assistance  of  the  law,  and  to  reg- 
ulate and  protect  the  rights  of  the  members,  to  conduct  relations 
with  other  states  and  to  assume  responsibility  for  its  acts. 

58.  The  State  is  by  full  right  a  person  of  the  Magna  civitas  and 
must  as  such  be  considered  capable  of  entering  into  relations  with 
other  states,  of  acquiring  the  rights  that  it  may  possess,  of  enjoy- 
ing and  exercising  them,  of  performing  the  legal  obligations  in- 
cumbent upon  it,  and  of  invoking  in  its  relations  with  other  states 
the  application  of  international  law. 

The  State  possesses  individuality  jure  suo  resulting  from  its  political  con- 
stitution as  a  state.  All  peoples  who  by  virtue  of  their  will  and  freedom  con- 
stitute a  state  assume  thus,  jure  propria,  the  character  of  persons  in  the  Magna 
civitas.  In  effect,  as  soon  as  politically  constituted,  it  has  the  power  to  require 
of  all  other  states  the  respect  of  its  own  rights  and  of  all  that  belongs  to  it; 
it  may,  besides,  in  its  relations  with  other  states,  require  the  application  of 
international  law.  That  point  is  unquestioned,  and  even  most  authors  admit 
that  the  State  alone  must  be  considered  as  a  person  in  the  Magna  civitas. 

INTERNATIONAL  RIGHTS   OF  THE   STATE 

59.  Every  state  having  some  form  of  political  constitution  and 
a  government  capable  of  entering  into  political  relations  with 
other  states  and  of  assuming  responsibility  for  its  acts,  has  the 
right  in  its  relations  with  other  states  to  be  considered  as  politi- 
cally constituted. 

International  law  need  not  be  concerned  with  the  legitimacy  of  the  con- 
stituted powers,  in  contrast  with  constitutional  law  which  admits  of  the  study 
of  these  same  powers  according  to  internal  law,  and  consequently,  the  examina- 


PERSONS   AND    THEIR    INTERNATIONAL   RIGHTS  107 

tion  of  their  legitimacy.  Qui  de  facto  regit  is  considered  as  sovereign  in  inter- 
national society.  Consequently,  international  law  must  apply  to  states  as 
they  are  and  as  history  has  made  them. 

60.  Every  state  which  is  considered  as  politically  constituted,  is 
entitled  to  assume  jure  suo  the  status  of  a  person,  independently 
of  the  formality  of  recognition  (compare  rule  168)  and  may  require 
in  its  relations  with  other  states  the  application  of  international 
law. 

61.  Every  state  politically  constituted  must  be  considered  ipso 
jure  ipsoque  facto  as  possessed  of  all  the  rights  which  ought  to  be 
considered  as  its  rational  rights  and  of  the  ability  to  assume  in- 
ternational obligations  in  its  relations  with  other  states. 

62.  The  rational  international  rights  which  every  state  possesses 
are  those  which  by  reason  of  its  nature  as  an  institution  must  be 
considered  indispensable  in  order  that  it  may  exist,  with  its  neces- 
sary characteristics.     These  are: 

a.  The  right  of  autonomy,  independence  and  liberty; 

b.  The  right  of  sovereignty  and  jurisdiction; 

c.  The  right  to  legal  equality; 

d.  The  right  of  representation. 

63.  The  rational  rights  of  the  State  must  be  considered  as  ab- 
solute, inalienable  and  intangible. 

64.  Every  state  admitted  into  relationship  with  another  state 
must  be  considered  as  being  so  admitted  with  the  enjoyment  of 
its  rational  international  rights,  and  it  may  ipso  jure  exercise  the 
said  rights  without  any  authorization  from  the  sovereign  of  the 
state. 

65.  No  limitation  upon  the  enjoyment  and  exercise  of  the  ra- 
tional rights  of  the  State  can  exist  except  by  virtue  of  a  general 
treaty  subscribed  and  ratified  by  the  State,  or  of  a  special  treaty 
concluded  and  ratified  by  two  states,  or  of  the  constitutional  law 
of  both  countries. 

No  limitation  of  the  said  rights  can  be  based  on  analogy  or  in- 
duction (Cf.  rule  42). 

The  two  rules  set  forth  are  based  on  the  just  idea  that  every  state  is  free  to 
enter  into  relations  with  another  state,  but  that,  being  unable  at  its  own 
volition  to  concede  or  deny  that  such  state  is  a  jure  propria  person  of  the 
Magna  civitas,  it  cannot  decide  arbitrarily  whether  that  state  may  or  may  not 
enjoy  its  rational  international  rights,  that  is  to  say,  those  which  are  its  own 
aw  a  state  accf>rding  (o  intcrnatioiuil  law  (see  Fiore,  ('onsultaziotte  tra  la  Grecia 


108  INTERNATIONAL   LAW   CODIFIED 

c  la  Romania,  successione  Zappa,  Rome;  Delia  personalitd  giuridica  dei  corpi 
morali  e  della  personalitd  giuridica  dello  Stato  a  I'interno  e  all'estero;  Questioni 
di  Diritto,  Turin,  Unione  Tip.-Editrice). 

MAN    IS   A    PERSON 

66.  Man  must  be  considered  as  a  person  of  the  Magna  civitas; 
as  such  he  is  a  subject  of  law  in  his  relations  with  international 
law. 

Man  is  the  natural  person.  He  is  born  and  exists  according  to  natural  law 
with  his  own  individuality  and  is  endowed  with  liberty  and  the  capacity  to 
maintain  legal  relations  with  other  persons. 

It  is  important  to  remember  that  human  individuahty  and  the  rational 
rights  which  belong  to  man  as  such  exist  as  well  in  his  relations  with  civil 
society  as  in  his  relations  with  both  political  and  international  society.  Man 
must,  therefore,  be  considered  as  a  subject  of  law  in  so  far  as  all  the  relations 
he  may  establish  by  reason  of  his  hberty  and  activity  are  concerned. 

As  regards  civil  society,  he  must  be  considered  as  a  subject  of  private  rights 
even  when  he  has  not  the  status  of  citizenship  in  a  particular  state.  As  regards 
political  society,  when  he  belongs  to  it  as  a  citizen,  he  must  be  considered  as  a 
subject  of  those  private  and  pubhc  rights  which  rest  upon  citizenship.  As 
regards  international  society,  since  his  individuahty  in  his  relations  with 
mankind,  far  from  being  lost  like  a  drop  of  water  in  the  ocean,  subsists  with  his 
personality  and  all  the  rights  which  are  his  in  accordance  with  rational  law,  he 
must  be  considered  as  a  subject  of  the  international  rights  which  are  based  on 
rational  law.  Therefore,  he  may  claim  the  application  of  international  law 
and  the  respect  of  what  we  call  the  international  rights  of  human  personality 
in  his  relations  with  mankind,  that  is  to  say,  in  the  relations  which,  by  reason 
of  his  liberty  and  activity,  he  may  estabhsh  with  other  men  hving  in  the 
Magna  Civitas  and  with  the  various  states  belonging  to  international  society. 

Would  any  one  venture  by  any  chance  to  maintain  that  the  man  who  is  not 
a  citizen  of  a  particular  state,  whatever  his  race  or  color  or  whether  he  be  civ- 
ilized or  not,  may  within  international  society  be  considered  as  a  material  thing, 
incapable  of  being  a  subject  of  rights?  That,  independently  of  treaties,  man 
cannot  require  respect  for  the  rights  of  his  human  personality,  those  rights 
which  belong  to  him  as  a  man  according  to  rational  law? 

If  that  cannot  be  reasonably  maintained,  can  it  be  denied  that  man,  as  such, 
must  be  deemed  a  subject  of  the  international  rights  arising  out  of  his  nature 
as  a  human  being? 

We  know  very  well  that  our  theory  is  received  with  some  distrust,  owing  to 
the  fact  that  most  authors  consider  as  international  rights  only  those  belonging 
to  states  in  their  relations  with  other  states  and  which  have  been  recognized 
and  consecrated  by  treaties.  It  is  said,  in  order  to  combat  our  opinion,  that 
man  has  neither  the  power  to  conclude  a  treaty  nor  to  assume  an  international 
obligation.  But  to  such  criticism  we  answer  that  we  never  meant  to  claim  that 
man  could  be  the  subject  of  the  international  rights  which  belong  to  states 
alone  in  their  relations  with  one  another. 

In  their  respective  relations  with  the  Magna  civitas,  the  status  and  per- 
sonality of  the  State  is  one  thing,  the  status  and  personality  of  man,  another. 
That  is  why  it  must  be  admitted  that  the  international  rights  which  they 


PERSONS   AND   THEIR    INTERNATIONAL   RIGHTS  109 

respectively  possess  must  differ  substantially,  as  well  as  their  ability  to  act 
and  bind  themselves  mutuallj-.  Accordingly,  it  may  be  said  with  reason  that 
only  a  state  may  conclude  a  treaty  and  assume  an  international  obligation. 
This  is  based  on  the  just  principle  that  every  international  obligation  has  the 
nature  and  character  of  a  public  and  political  obligation  and  that  the  State 
alone  has  the  necessary  capacity  to  contract  it,  because  it  alone  is  a  political 
and  pubhc  institution.  Man,  as  we  shall  note  in  Book  II,  has  not  the  capacity 
to  assume  an  international  obligation  and  cannot  claim  the  enjoyment  in  the 
Mngna  civitas  of  the  rights  appertaining  to  the  State.  We  hold,  however, 
that  he  may  require  the  respect  and  the  enjoj-rnent  of  the  rights  based  on 
himian  nature.  That  is,  in  that  respect  he  must  be  considered  jure  suo  as  a 
subject  of  international  rights. 

The  theory  which  we  have  always  sustained,  previously  set  forth  by  Heffter 
(Le  droit  international  de  VEurope)  and  criticised  by  his  annotator  Geffcken 
(§  14,  note  2  and  §  5S),  has  been  admitted  by  Chretien.  It  has  also  been 
admitted  by  Bonfils  in  his  important  work,  Le  droit  international  public,  §  157. 
It  is  to  be  hoped  that  other  courageous  champions  will  be  found  and  that, 
just  as  the  rights  of  human  personality  with  regard  to  internal  public  law  have 
been  successfully  vindicated  by  proclaiming  the  rights  of  man  in  the  political 
constitutions  of  all  civilized  countries,  so  the  international  rights  of  man  as 
regards  international  law  will  be  finally  proclaimed. 

We  find  in  an  important  international  document  of  our  time  facts  tending 
to  corroborate  us.  Article  40  of  the  treaty  of  Berlin  of  July  13,  1878,  prescribes 
that,  until  the  conclusion  of  a  treaty  between  Turkey  and  Servia,  Servian 
subjects  must  be  treated  in  accordance  with  the  general  principles  of  international 
law.  Thus,  it  was  admitted  that  man  may  find  the  basis  of  his  rights  in  inter- 
national law. 


INTERNATIONAL   RIGHTS   OF    MAN 

67.  The  international  rational  rights  of  man  are  those  which 
belong  to  him  as  a  man.  They  constitute  the  international  rights 
of  the  human  personality.    They  are  mainly: 

a.  The  right  of  liberty  and  personal  inviolability; 

b.  The  right  to  choose  citizenship  in  a  certain  state,  to  renounce 
the  one  acquired  and  to  select  another; 

c.  The  right  to  emigrate; 

d.  The  right  of  unhampered  activity  and  international  trade; 

e.  The  right  to  own  property; 

/.  The  right  to  freedom  of  thought; 

68.  No  man  can  claim  the  enjoyment  and  exercise  of  his  ra- 
tional rights  unless  he  abides  by  the  laws  of  the  country  in  which 
he  expects  to  enjoy  and  exercise  such  rights. 

69.  The  positive  international  rights  of  man  are  those  he  may 
enjoy  as  a  citi/en  of  the  state  l\y  reason  of  the  treaties  concluded 
between  that  state  and  other  states. 


110  INTERNATIONAL   LAW   CODIFIED 

Every  individual  may  claim  the  right  to  enjoy  in  international  relations  all 
the  rights,  advantages  and  privileges  which,  by  the  terms  of  the  treaties  be- 
tween two  states,  are  reserved  for  their  respective  citizens.  Thus,  for  instance, 
the  right  of  authors  of  hterary  or  artistic  works  to  request  and  obtain  the  pro- 
tection of  their  works,  belongs  exclusively  to  citizens  of  the  states  which  have 
signed  the  convention  of  the  international  copyright  union,  or  adhered  thereto. 
Private  rights  granted  to  the  respective  citizens  of  states  which  are  parties  to 
treaties  of  commerce,  capitulations  and  consular  conventions,  must  be  deduced 
in  like  manner. 

THE    CATHOLIC    CHURCH   IS   A   PERSON 

70.  The  Catholic  church  is  an  institution  constituted  as  a  re- 
sult of  freedom  of  thought  by  a  great  number  of  men  scattered  all 
over  the  world,  but  united  in  a  religious  association  by  the  bond  of 
a  common  faith  under  the  supreme  authority  of  the  Pope,  who 
maintains  the  unity  of  the  association  by  promulgating  the  dogma 
and  principles  of  its  belief,  and  by  providing  for  its  government 
without  resorting  to  coercive  measures. 

71.  The  Catholic  church  is  a  person  of  the  Magna  civitas. 

The  Catholic  church,  taking  it  as  it  is,  as  time,  tradition  and  history  have 
made  it,  is  a  world  institution  admirable  by  reason  of  its  organization,  grad- 
ually cemented  by  the  work  of  twenty  centuries  and  preserved  by  the  most 
compact  and  well-disciplined  hierarchy  that  ever  existed.  It  has  as  such  its 
individuality  jure  suo,  since  it  is  constituted  by  virtue  of  the  right  of  liberty 
of  conscience  which  belongs  to  every  man,  such  right  assuming  the  character 
of  a  collective  right  with  regard  to  all  the  believers  who  formed  the  Catholic 
church.  Moreover,  it  possesses  its  own  sphere  of  activity,  which  is  not  re- 
stricted to  the  territory  of  any  one  state,  but  is  exercised  over  all  parts  of  the 
world  where  there  are  believers  united  in  reUgious  association  under  the  su- 
preme authority  of  the  Pope  by  virtue  of  unity  of  faith,  discipline  and  worship. 
Since  it  is  undeniable  that  the  Catholic  church  is  in  fact  an  international  in- 
stitution, that  it  is  such  jure  proprio  and  that  it  belongs  to  the  Magna  civitas,  it 
must,  therefore,  be  conceded  that  it  is  also  a  person  of  the  international  society. 

The  great  difficulty  which  lies  in  the  way  of  the  acceptance  of  our  idea  is  the 
fact  that  the  Catholic  church  is  at  once  a  religious  association  exercising  its 
rights  within  the  state,  and  a  corporation  residing  in  the  said  state,  by  reason 
of  which  it  falls  under  the  power  of  the  sovereign  and  must  obey  the  provisions 
of  public  territorial  law. 

It  is  truly  difficult  to  consider  the  Church  from  each  of  these  points  of 
view.  Consequently,  certain  publicists  such  as  Bluntschli  (rule  26,  Droit  int. 
codifie),  Heffter-Geffcken  {Droit  intern.,  §  40),  T.  Martens  {Droit  intern.,  v.  I, 
p.  426),  Pradier-Foder^,  no.  81;  Bonfils  {Droit  intern.,  §  155),  have  held  that 
they  could  not  admit  that  the  Catholic  church  had  an  international  person- 
ality. They  stated  in  effect,  that  it  is  the  public  law  of  each  country  which 
determines  the  rights  and  privileges  of  the  Church  as  a  corporation;  that  it  is 
the  political  legislation  of  the  State  which  regulates  the  acts  of  the  Church 
and  the  responsibility  of  the  persons  designated  to  exercise  their  functions  as 


PERSONS   AND   THEIR  INTERNATIONAL  RIGHTS  111 

ministers  of  the  Pope;  that,  in  substance,  everything  is  regulated  by  con- 
cordats when  there  are  any,  and  in  their  absence,  by  pubHc  internal  law,  and 
that  notliing  belongs  to  the  domain  of  international  law.  Hence,  they  say, 
the  Church  has  no  international  personality. 

After  carefully  considering  every  side  of  the  question,  we,  on  the  contrary, 
deem  it  necessary  to  distinguish  the  Catholic  church  as  a  universal  institution 
from  that  church,  considered  as  an  association  and  corporation  existing  within 
the  state;  and  we  beheve,  that  by  determining,  on  the  one  hand,  the  legal 
rights  and  faculties  which  belong  to  it  as  an  association  of  men  scattered  over 
all  parts  of  the  world  and  united  by  the  same  religious  belief  under  the  au- 
thority of  the  Pope,  and  by  examining,  on  the  other  hand,  the  legal  rights  and 
powers  that  are  accorded  to  it  within  each  state  as  a  corporation,  one  may  ad- 
mit the  personality  of  the  Catholic  church  as  a  world  institution,  without  cur- 
tailing in  any  way  the  authority  of  public  internal  law  over  it. 

We  concede  that  public  internal  law  is  controlled  by  international  law, 
which  fixes  the  legal  sphere  within  which  the  absolute  autonomy  of  the  sov- 
ereignty of  every  state  can  be  admitted.  Therefore,  the  international  rights 
which  belong  to  persons  existing  in  the  Magna  civitas  are  quite  different  from 
those  which  may  belong  to  them  in  their  relations  with  internal  law.  The  fun- 
damental question  is  always  the  same;  it  consists  in  establishing  whether  or 
not  a  being  or  entity  may  become  the  subject  of  international  rights.  Now,  we 
hold  that  the  Catholic  church,  as  a  world  institution,  must  be  considered  as  a 
subject  of  public  rights,  and  even,  under  the  circumstances,  of  private  rights, 
if  it  is  characterized  as  a  legal  person  under  the  terms  of  internal  law.  We 
concede,  therefore,  that  as  a  world  institution,  it  is  a  person  of  the  Magna 
civitas,  and  may  require  the  application  of  international  law;  and  that  as  a 
corporation,  it  has  the  same  status  as  any  association  existing  within  a  state, 
and  consequently  must  be  subject  to  the  authority  of  public  internal  law. 

Bonfils  agrees  with  the  opinion  that  international  personality  is  denied  the 
Catholic  church,  on  the  ground  that  public  international  law  does  not  regulate 
the  relations  of  the  Catholic  church  with  states.  He  notes,  besides,  that  it  is 
public  internal  law,  which,  in  treating  the  Church  as  a  corporation  subject  to 
pohtical  legislation,  determines  the  rights  and  privileges  that  are  accorded  to 
it,  as  well  as  the  restrictions  it  must  suffer  as  a  corporation. 

We  grant  that,  in  general,  international  rights  cannot  be  accorded  to  persons 
unless  they  are  subject  to  international  law;  but  that  such  rights  must  be 
declared  and  regulated  whenever,  in  accordance  with  the  principles  of  natural 
justice,  such  rights  are  conceded  to  them. 

It  is  a  fact  that  in  the  great  republic  called  humanity  or  mankind,  the 
Catholic  church  exists  as  a  world  institution,  and  as  such,  has  its  own  in- 
dividuality independently  of  territorial  law.  It  is  also  certain  that  its  followers, 
scattered  over  all  parts  of  the  world,  by  reason  of  the  right  of  religious  liberty, 
recognize  the  authority  of  the  Pope  as  their  supreme  head.  Now,  the  ensemble 
of  the  indispen.sable  conditions  required,  according  to  principles  of  justice,  in 
order  that  such  a  world  institution  may  exist,  constitutes  the  international 
rights  of  the  Catholic  church  as  a  world  institution,  in  so  far  as  these  rights  do 
not  arise  from  internal  law,  but  belong  to  the  Catholic  church  jure  sua  with 
regard  to  all  states,  and  are  based  on  the  higher  principles  which  must  govern 
international  society. 

Objections  are  raised  that  political  law  is  the  only  basis  of  the  rights  and 
|)rivileges  of  the  Catholic  church  and  the  whole  matter,  it  is  argued,  is  merely  a 
question  of  public  internal  law.    With  thLg  we  cannot  agree  at  all. 


112  INTERNATIONAL  LAW  CODIFIED 

Let  us  study  carefully  the  history  of  the  occupation  and  annexation  of  Rome 
and  of  the  Pontifical  states  by  Italy.  Such  occupation  and  annexation  have, 
with  reason,  been  considered  as  questions  of  public  internal  law.  Italy  was 
able  on  that  occasion  to  suppress  religious  corporations,  to  subject  the  Church 
to  its  internal  laws  so  far  as  the  acquisition  of  property  is  concerned,  to  regu- 
late the  exercise  of  worship,  to  subject  the  ministers  of  worship  to  the  authority 
of  civil  and  penal  laws  even  in  regard  to  the  exercise  of  their  calling,  and  no 
one  had  or  will  have  the  right  to  interfere  with  such  measures,  which  are  fully 
within  the  domain  of  the  internal  public  law  of  Italy.  But  in  occupying  Rome, 
would  it  have  been  possible  for  Italy  to  interfere  with  the  independence  of 
the  Pope,  to  prevent  or  restrict  the  exercise  of  his  supreme  power  as  head  of 
the  Church,  to  prohibit  or  hinder  the  convening  in  Rome  of  councils  or  synods, 
to  obstruct  the  free  intercourse  of  the  Holy  See  with  Catholics  in  different 
parts  of  the  world,  to  forbid  these  Catholics  coming  to  Rome  to  recognize 
the  Pope  as  their  supreme  head,  and  finally  to  deny  the  Pope  the  right  of 
representation  in  his  relations  with  foreign  governments  wishing  to  maintain 
diplomatic  relations  with  him? 

Can  these  questions  in  any  way  be  considered  as  within  the  domain  of  public 
internal  law? 

It  is  with  good  reason  that  the  suppression  of  concordats,  the  separation 
of  Church  and  State  and  the  suppression  of  certain  privileges  have  been 
considered  as  within  the  domain  of  public  internal  law;  but  could  it  ever  be 
possible  to  regard  as  within  the  domain  of  this  law  the  denial  of  the  right  of 
religious  belief  for  Christians,  the  massacre  of  Christians  and  their  persecution 
by  infidels  aroused  by  religious  fanaticism?  Can  it  be  held  that  attacks  upon 
the  natural  rights  of  the  Church  and  its  members  must  be  treated  with  in- 
difference by  international  law,  because  it  does  not  regulate  the  relations  of 
the  Catholic  church  with  the  various  states? 

History  points  to  the  contrary.  The  worthy  idea  of  Cavour,  the  free 
Church  in  the  free  State,  the  diplomatic  note  of  Viscount  Venosta  informing 
the  Catholic  world  that  Italy  in  occupying  Rome  intended  carefully  to  respect 
the  independence  of  the  Pope  and  the  Church,  the  law  of  May  19,  1871,  pro- 
claiming and  guaranteeing  the  rights  of  the  Papacy  in  its  relations  with  the 
international  association  of  Catholics  and  with  the  Italian  State, — everything, 
so  to  speak,  tends  to  prove  that  the  Church,  as  a  world  institution,  must  be 
endowed  with  certain  rights,  independent  and  quite  distinct  from  those  which 
it  possesses  as  a  corporation  and  religious  association  in  its  relations  with  each 
particular  state,  for  the  latter  must  be  governed  by  public  internal  law. 

To  conclude,  the  Roman  Catholic  church,  as  a  world  institution,  should  be 
considered  as  a  subject  of  international  rights — which  we  shall  inclicate  pres- 
ently— and  is  consequently,  as  such,  a  person  of  the  Magna  civitas.  It  is 
therefore  evident  that  in  regard  to  the  rights  we  call  international  rights,  the 
Catholic  church  may  claim  the  application  of  international  law  and  the 
collective  legal  protection  of  civilized  states. 

72.  Every  Church  may  be  regarded  as  a  person  of  the  Magna 
civitas  when,  considering  its  constitution  and  organization,  it 
actually  occupies  the  position  of  an  international  or  world  insti- 
tution. 

International  law  must,  in  principle,  protect  the  right  of  freedom  of  con- 
science both  as  a  right  of  man  and  as  a  collective  right.    It  must,  therefore,  safe- 


PERSONS   AND   THEIR   INTERNATIONAL   RIGHTS  113 

guard  the  freedom  of  religious  association  and  faith.  Nevertheless,  in  order  that 
a  Church  may  assume  the  condition  of  a  person  in  the  Magna  civitas,  it  is  indis- 
pensable that  it  be  a  world  institution.  It  must,  therefore,  comprise  a  great 
number  of  followers  scattered  all  over  the  world  and  associated  by  reason  of 
their  common  belief  and,  finally,  organized  under  the  authority  of  a  chief 
who  effectively  exercises  over  them  his  supreme  power  through  the  clergy  and 
religious  hierarchy. 


INTERNATIONAL  RIGHTS   OF  THE   CHURCH 

73.  The  international  rights  of  the  Roman  Catholic  church  are 
those  which  belong  to  it  as  a  spiritual  and  world  institution.  They 
are: 

a.  The  right  of  independence  in  regard  to  its  constitution  and 

organization; 

b.  The  right  to  liberty  of  government  in  the  sphere  of  its  purpose 

as  a  spiritual  institution; 

c.  The  right  of  the  Pope  to  maintain  free  and  reciprocal  inter- 

course with  all  persons  forming  the  hierarchy  and  with  the 
followers  of  the  Church; 

d.  The  right  of  representation; 

e.  The  inviolability  of  the  Pope  as  the  spiritual  head  of  the  re- 

ligious association. 

74.  The  Church  cannot  be  assimilated  to  a  state,  nor  claim  the 
enjoyment  of  the  rights  belonging  to  a  state  as  such.  Neither  can 
it  claim  for  its  supreme  head  the  enjoyment  of  the  rights  and  pre- 
rogatives which,  according  to  international  law,  belong  to  the  ruler 
of  the  State  considered  as  a  political  institution. 

75.  The  Church,  which,  as  a  spiritual  world  institution,  is  an 
international  person,  cannot  claim  any  territorial  domain  on  the 
pretext  that  such  domain  is  indispensable  to  its  independence,  nor 
the  enjoyment  of  any  right  whatever  based  on  territorial  sovereignty 
or  ordinary  jurisdiction  which  implies  the  exercise  of  temporal  and 
political  power. 

'I'hc  international  rights  to  be  assigned  to  the  Church  are  those,  we  believe, 
which,  considering  its  nature  as  a  spiritual  world  institution,  are  indispensable 
to  it  in  enabling  it  to  exist  as  such  and  to  attain  its  ultimate  purpose.  Its 
primordial  and  fundamental  right  is  independence;  but  in  order  to  insure  for 
that  right  a  finn  legal  ba.sis,  there  is  no  need  of  political  indei)on(lence,  terri- 
torial power,  ordinary  jurisdiction,  the  right  of  imperium  or  finally,  coercive 
power.  The  whole  filing  is  summed  up  in  the  fx'rfect,  freedom  of  proiiiulgMtirig 
the  dogma  and  princiijles  of  the  faith,  by  bringing  them  to  the  knowledge  of 


114  INTERNATIONAL   LAW    CODIFIED 

the  individuals  who  wish  freely  and  spontaneously  to  recognize  them.  Con- 
sequently there  cannot  be  anything  in  common  between  the  rights  of  the  State 
and  those  of  the  Church,  between  the  rights  of  a  political  sovereign  and  those 
of  the  Pope.  The  sovereign  exercises  his  power  over  the  persons  in  his  terri- 
tory; he  must  be  invested  with  coercive  power  so  as  to  fulfil  his  mission,  which 
consists  in  providing  for  the  unhampered  development  of  freedom  and  ac- 
tivity of  every  one  in  his  own  legal  sphere.  The  head  of  the  Church  does  not 
exercise  his  supreme  power  within  certain  territorial  limits,  but  extends  it  all 
over  the  world.  His  subjects  are  souls,  and  his  function  consists  in  promul- 
gating principles  of  faith  without  resorting  to  coercive  measures.  Conse- 
quently, it  cannot  be  said  that  the  Pope  exercises  any  territorial  and  temporal 
power,  or  claims  any  of  the  rights  belonging  to  the  sovereign  of  the  State  as 
head  of  a  political  institution. 

In  considering  the  Catholic  church  as  a  person  of  the  Magna  civitas,  we 
assign  to  it  the  rights  which  we  believe  are  its  international  rights.  We  can- 
not, therefore,  allow  it  the  power  to  acquire  international  rights,  as  a  state 
does,  by  means  of  treaties.  In  fact,  concordats  are  acts  of  public  internal 
law,  on  which  international  rights  cannot  be  based. 

We  find  the  solemn  recognition  of  the  rights  of  the  Catholic  church  in  the 
Italian  law  of  May  13,  1871,  promulgated  with  a  view  to  proclaiming  them 
before  the  whole  world.  Those  who  deny  international  personality  to  the 
Church  should  consider  that  if  the  Holy  See  were  to  reside  outside  of  Rome, 
it  would  be  incumbent  upon  the  sovereign  of  the  state  in  which  the  Pope 
might  reside,  to  do  spontaneously  what  Italy  has  done,  namely,  to  proclaim 
and  guarantee  the  international  rights  of  the  Church.  Otherwise,  by  virtue 
of  the  principles  of  international  law,  the  power  to  insure  the  free  ex- 
ercise of  the  international  rights  of  the  Holy  See  would  reside  in  states 
having  Catholic  interests  to  protect,  especially  in  those  professing  the 
Catholic  faith. 

76.  The  Church  cannot  possess  dejure  the  right  to  acquire  prop- 
erty or  to  be  considered  as  a  universal  juridical  person:  it  may 
enjoy  such  a  right  only  by  express  grant  of  the  territorial  govern- 
ment. In  such  a  case,  it  may  be  deemed  a  juridical  person  within 
the  limits  of  the  territory  of  the  State  and  must  conform  to  the 
territorial  law  as  regards  the  acquisition  and  exercise  of  any  prop- 
erty right. 

Certain  authors  who  do  not  recognize  the  distinction  between  the  position 
of  the  Church  as  a  person  of  the  Magna  civitas  and  that  of  a  juridical  person, 
combat  our  theory,  claiming  that  the  Church  cannot  be  a  universal  juridical 
person. 

That  is,  for  instance,  the  contention  of  Professor  Scaduto.  However,  far 
from  ever  having  asserted  it,  we  have  denied  that  the  Church  could  be  an 
international  juridical  person.  See  Fiore,  Diritto  internazionale  pubblico,  3d 
and  4th  ed.,  vol.  I,  Dei  diritti  intemazionali  della  Chiesa;  Id.,  Diritto  inter- 
nazionale codificato,  1st  ed.,  1890,  rule  31,  note,  and  2d  ed.,  rule  37,  note, 
pages  81-82;  3d  ed.,  rule  37;  4th  ed.,  rule  71,  pages  120-121,  and  the  present 
note. 


PERSONS  AND   THEIR   INTERNATIONAL  RIGHTS  115 


INDEPENDENT  TRIBES 

77.  Every  independent  tribe,  which  has  its  own  organization  and 
recognizes  the  authority  of  a  supreme  chief  who  rules  it  and  re- 
spects the  fundamental  principles  of  international  law,  must  be 
considered  a  person  of  the  Magna  civitas. 

78.  International  law  should  be  applied  to  independent  tribes 
within  the  limits  determined  by  rules  46  and  47. 

Independent  tribes  are  those  which  inhabit  a  certain  definite  region  anrl 
have  a  certain  form  of  political  constitution  according  to  their  written  statutes 
and  common  law.  Each  of  them  usually  has  a  chief,  hereditary  or  elected  by 
the  people.  He  himself  appoints  the  subordinate  chiefs,  over  whom  he  exer- 
cises supreme  authority,  having  the  power  to  depose  them  or  to  call  upon  them 
to  give  account  of  their  duties  and  to  punish  them,  or  to  decide  disputes  arising 
among  them. 

WTien  tribes  have  a  more  or  less  perfect  pohtical  organization,  international 
personality  should  not  be  denied  them,  although  they  cannot  be  assimilated 
to  a  state.  It  must  be  conceded,  of  course,  that  international  law  should  be 
applied  to  them  in  varying  degrees  to  accord  with  historical  exigencies;  but 
they  cannot  be  excluded  from  the  legal  community  as  claimed  by  certain 
authors  who  wish  to  make  legitimate  certain  usages,  especially  the  conquest 
of  the  territories  of  those  peoples,  under  the  pretext  that  uncivilized  inde- 
pendent tribes  do  not  belong  to  international  society.  It  must  certainly  be 
recognized  that  there  are  civilized,  uncivilized  and  barbarian  nations  in  the 
world.  We  believe  that  they  should  all  be  subject  to  the  superior  authority 
of  international  law,  although  we  admit  that  it  cannot  be  identical  for  each 
of  them,  but  must  be  modified  as  needed  to  conform  to  historical  and  moral 
exigencies. 


INTERNATIONAL   RIGHTS   OF   INDEPENDENT  TRIBES 

79.  Every  tribe  organized  according  to  its  own  law,  having  any 
form  of  government  capable  of  commanding  the  respect  of  th(i 
fundamental  principles  of  international  law,  may  require  that  in 
its  de  facto  relations  established  with  civilized  states,  international 
law  may  be  applied  with  the  limitations  justified  by  its  historical 
and  moral  status. 

80.  The  violent  conquest  of  an  independent  tribe  must  be 
deemed  a  veritable  violation  of  the  common  law  of  humanity. 

Independent  tribes  cannot  be  considered  as  outside  the  law  of  humanity. 
It  can  only  be  said  that  they  cannf)t  re(|uire  the  full  api)lication  of  international 
law,  aa  is  the  caae  with  civilized  stales. 


116  INTERNATIONAL  LAW   CODIFIED 


LEGAL  ENTITIES 


81.  The  status  of  a  person  in  international  society  may  be 
claimed  by  legal  entities  personified  by  reason  of  a  well-defined 
purpose  of  international  interest.  This  status  is  limited  to  the 
states  which  have  recognized  them  as  persons  and  given  them  the 
right  to  acquire  certain  privileges,  which  they  must  exercise  and 
enjoy  in  order  to  fulfill  the  international  mission  for  which  they 
were  created. 

82.  The  international  personality  of  legal  entities  must,  in 
principle,  be  considered  as  limited  to  the  exercise  of  the  interna- 
tional rights  granted  to  them,  and  it  cannot  have  any  effect  on 
states  which  have  not  recognized  these  entities  as  international 
juridical  persons. 

The  condition  of  legal  persons  according  to  international  law  is  similar  to 
that  of  legal  persons  under  the  civil  law.  The  individuality  of  these  two  classes 
of  persons  which,  as  we  have  said  elsewhere  (rule  56),  must  be  considered  as 
an  essential  condition  of  their  existence,  depends  on  the  personification  which 
proceeds  from  the  purpose  by  reason  of  which  legal  entities  that  are  not 
persons  jure  proprio,  acquire  personaUty.  Legal  persons  must  be  considered 
individualized  in  consequence  of  a  legal  fiction  and  become  persons  by  virtue 
of  the  act  granting  them  the  capacity  to  operate,  to  bind  themselves  and  to 
be  considered  the  subjects  of  rights. 

There  are  numerous  instances  in  which  the  capacity  to  exercise  certain 
international  rights  was  conferred  on  certain  legal  entities,  by  the  consent  of 
states.  Such  was  the  case  with  the  German  confederation.  It  is  also  the  case 
with  the  International  Congo  Association,  which  prior  to  its  being  incorporated 
with  Belgium,  was  recognized  by  Germany,  Austria-Hungary,  Belgium,  Den- 
mark, Spain,  the  United  States,  France,  Great  Britain,  Italy,  the  Netherlands, 
Portugal,  Russia,  Sweden  and  Norway.  (See  Nouveau  Recueil  general  des 
traites,  continuation  of  Martens,  by  Jules  Hopf,  2d  ser.,  v.  X,  1885,  and  the 
important  work  of  Catellani,  Le  colonie  e  la  Confederenza  di  Berlino,  chap.  VIII, 
Associazione  internazionale  del  Congo,  p.  499.) 


TITLE  II 

PERSONS  UNDER  THE  AUTHORITY  OF  INTERNA- 
TIONAL LAW  AND  THEIR  RIGHTS 

83.  Groups  of  men  united  by  a  common  cause,  reason  or  purpose, 
so  far  as  they  interest  international  society  in  the  exercise  of  their 
rights  and  the  development  of  their  activity,  constitute  beings 
which  must  be  considered  subject  to  international  law.    Such  are: 

a.  The  people; 

b.  The  nation — in  the  sense  of  a  nationality; 

c.  Uncivilized  tribes. 

THE   PEOPLE 

84.  Men  who  inhabit  the  same  territory,  live  under  the  same 
laws,  and  are  united  by  the  bond  of  common  civil,  economic,  social 
and  political  interests,  constitute  the  people. 

THE  NATION 

85.  The  nation  is  composed  of  people  of  the  same  origin  and 
race,  who  speak  the  same  language,  live  in  the  same  region,  and 
are  united  by  the  bond  of  common  traditions,  aspirations,  affec- 
tions, and  uniform  and  constant  moral  tendencies. 

UNCIVILIZED   TRIBES 

86.  An  uncivilized  tribe  is  composed  of  a  group  of  persons, 
formed  by  the  union  of  families.  It  lacks  a  definite  political  or- 
ganization and  has  neither  the  laws  nor  the  customs  of  civilized 
peoples. 

INTERNATIONAL  STATUS  OF  THE  PEOPLE  AND  OF  THE  NATION 

87.  The  people  and  the  nation  cannot  be  considered  as  persons 
of  the  Magna  civitas.    They  cannot  claim  the  necessary  capacity 

117 


118  INTERNATIONAL   LAW    CODIFIED 

to  exercise  their  rights  and  assume  international  obligations  until 
they  have  succeeded  in  organizing  themselves  as  a  political  body 
and  constitute  an  independent  government. 

However,  as  groups  of  men,  while  exercising  their  collective 
rights,  which  may  be  of  international  concern,  they  must  be  con- 
sidered subject  to  international  law. 

The  distinctive  characteristic  of  a  person  is  individuaUty;  hence,  the  char- 
acteristics of  international  personaHty  are  individuahty  independent  of  terri- 
torial law  and  a  sphere  of  activity  which  cannot  be  limited  to  the  boundaries 
of  any  one  state.  Consequentlj',  we  deny  the  character  of  international  person 
to  the  people  and  to  the  nation,  because  neither  one  possesses  the  necessary 
qualifications  of  international  activity  and  capacity.  The  bond  of  community 
capable  of  making  a  people  or  a  nation  of  a  group  of  men  is  not  sufficient  to 
give  them  the  capacity  to  act  in  the  Magna  civitas  so  as  to  be  considered  as  a 
person  of  the  international  society,  except  in  the  case  where  men,  thus  united, 
have  made  their  union  eflfective  by  the  adoption  of  a  certain  poHtical  con- 
stitution; that  is  to  say,  by  establishing  a  government  personifying  and  repre- 
senting the  principle  of  their  union.  So  long  as  the  people  or  nation  do  not 
attain  that  result,  it  may  be  said  that  they  are  in  a  state  of  evolution  tending 
toward  personality.  So  they  must  be  considered  as  possessing  certain  rights 
based  on  human  nature,  which  are  theirs  as  collective  beings.  In  reality, 
they  are  not  actually  persons,  but  (if  I  may  be  permitted  to  use  the  expression) 
they  are  persons  in  fieri,  persons  in  futuro.  The  people  and  the  nation  from 
the  point  of  view  of  international  law  seem  to  us  analogous  to  the  unborn 
child  in  ventre  sa  mere  from  the  point  of  view  of  the  civil  law. 

88.  The  international  status  of  the  people  and  of  nations  is 
essentially  different  and  distinct  from  the  condition  of  the  State 
(Cf.  rules  57  et  seq.). 


INTERNATIONAL  RIGHTS  OF  THE   PEOPLE 

89.  People  who  intend  to  establish  or  modify  their  political 
constitution,  have  the  right  to  expect,  so  far  as  everything  per- 
taining to  their  internal  life  is  concerned,  no  interference  from 
foreign  governments. 

90.  The  acts  of  a  revolutionary  faction,  engaging  in  hostilities 
to  settle  a  question  of  public  moment,  must  be  governed,  as  re- 
gards any  domestic  conditions,  by  the  public  law  of  the  State,  and 
as  regards  any  external  effects  and  relations,  by  international  law. 

91.  When  a  government  constituted  by  the  people  as  a  result 
of  a  revolution,  is  found  to  be  possessed  of  rights  of  sovereignty, 
it  must  be  admitted  by  other  states  to  be  legally  constituted. 


PERSONS    UNDER    INTERNATIONAL    LAW  119 

Such  a  government  may  demand  that  its  relations  with  foreign 
powers  be  regulated  by  international  law. 

According  to  the  principles  of  international  law,  he  is  sovereign  qui  de  facto 
regit.  The  legality  or  illegality  of  a  constituted  government  is  a  question  of 
internal  public  law.  Even  when  a  government  constituted  in  evident  violation 
of  the  principles  of  common  law  succeeds  in  establishing  itself,  it  may  in  its  re- 
lations with  other  states,  invoke  the  apphcation  of  international  law. 


INTERNATIONAL   RIGHTS   OF   NATIONALITIES 

92.  Populations  which  fulfill  the  requirements  necessary  to 
make  them  a  nation,  have  chiefly  the  right  to  unite  with  one 
another  as  a  political  body  and  to  constitute  a  State. 

93.  No  sovereign,  on  the  basis  of  treaties,  dynastic  interests  or 
prescription,  can  properly  maintain  the  right  to  set  bounds  to  the 
liberty  of  people  of  the  same  nationality  who  wish  to  unite  politi- 
cally in  conformity  with  their  national  aspirations. 

94.  International  law  should  protect  the  formation  of  national 
states,  safeguard  the  rights  of  people  of  the  same  nationality  and 
should  see  that  the  national  aspirations  spontaneously  and  con- 
stantly asserted  are  not  repressed  by  deception  or  force. 

In  order  to  strengthen  the  legal  organization  of  international 
society  and  to  eliminate  several  causes  of  internal  struggles,  it  is 
especially  advisable  to  favor  the  formation  of  national  states. 

INTERNATIONAL  STATUS  OF  BARBAROUS   POPULATIONS 

95.  Barbaric  people,  even  when  they  settle  in  a  territory  where 
they  live  as  they  please  and  recognize  the  authority  of  their  chief, 
cannot  be  considered  as  persons  of  the  Magna  civitas;  yet,  so  far 
as  concerns  the  de  facto  relations  which  may  be  established  be- 
tween them  and  states,  they  may  invoke  the  application  of  in- 
ternational law  within  the  just  limitations  determined  by  cir- 
cumstances and  by  their  status. 

96.  Nomadic  peoples  who  have  no  form  whatever  of  political 
organization  and  who  live  in  their  own  way  on  the  territory  they 
occupy,  must  be  considered  as  subject  to  international  law,  in  so 
far  as  it  protects  the  rights  of  human  personality. 

In  applying  this  rule,  we  must  admit  that  people  occupying  certain  regions, 
such  as  the  Arab  shepherds  who  till  the  ground  and  hunt,  cannot  be  unjustly 


120  INTERNATIONAL  LAW   CODIFIED 

treated  and  ruthlessly  deprived  of  their  lands.  International  law  must  be 
applied  to  them  in  conformity  with  the  requirements  of  justice,  by  observing 
the  general  duties  resulting  from  the  obligation  to  respect  the  rights  of  man 
and  of  human  personality. 


INTERNATIONAL   RIGHTS   OF   BARBAROUS   TRIBES 

97.  Barbarous  tribes,  living  in  their  own  way,  may  always,  in 
their  relations  with  civilized  states,  require  the  respect  of  the 
international  rights  of  the  human  personality,  which  are  theirs. 
Therefore,  it  is  not  lawful  for  Christian  and  civilized  states  to 
consider  barbaric  and  uncivilized  tribes  as  outside  of  the  law  of 
humanity. 

98.  Barbarous  tribes  have  the  right  to  retain  the  land  they  ac- 
tually occupy  and  the  right  not  to  be  deprived  of  it  by  violence  or 
without  their  consent,  in  open  defiance  of  the  fundamental  princi- 
ples of  international  law. 

At  the  Conference  of  Berlin,  where  the  final  act  relating  to  the  occupation 
and  civilization  of  the  African  regions  was  drawn  up,  Mr.  John  A.  Kasson, 
delegate  of  the  United  States,  spoke  as  follows  at  the  session  of  January  31, 
1885:  "International  law  constantly  follows  a  course  which  leads  to  the 
recognition  of  the  right  of  indigenous  races  to  provide  for  themselves  and 
their  hereditary  property.  In  conformity  with  this  principle,  my  government 
would  willingly  submit  to  a  broader  rule  based  on  a  principle  which  would 
aim  at  the  voluntary  assent  of  the  natives  whose  country  is  taken  possession  of, 
whenever  they  have  not  provoked  an  aggressive  act." 

99.  The  right  to  occupy  land  which  is  of  no  use  to  the  savages 
cannot  be  denied  to  civilized  states;  but  it  is  incumbent  upon  them 
to  effect  such  occupation  by  the  employment  of  means  least  in- 
jurious to  the  savages  from  whom  the  useless  land  is  taken. 

This  rule  is  based  on  the  principle  that  the  earth  is  in  general  designed  to 
serve  the  needs  of  everyone  and  that  it  is  not  permissible  that  savages  who  are 
unable  to  derive  any  profit  from  natural  products  should  be  allowed  to  leave 
sources  of  wealth  unproductive,  leaving  the  ground  uncultivated.  See  Fiore, 
Diritto  internazionale  pubblico,  4th  ed.,  §  867. 

JURISTIC   PERSONS 

100.  Juristic  persons  are  akin  to  natural  persons  in  the  exercise  of 
the  rights  assigned  to  them  under  the  law  of  the  state  which  recog- 
nizes them.  They  cannot  for  this  reason  exercise  their  rights  in  an- 
other state  unless  they  have  legally  been  recognized  there. 


PERSONS    UNDER    INTERNATIONAL    LAW  121 

This  rule  applies  to  juristic  persons  or  corporations  proper,  formed  from  all 
classes  of  associations  of  men,  property  or  purposes,  to  which  the  sovereign 
of  the  State  has  granted  personality  and  the  capacity  to  exercise  the  rights 
considered  necessary  to  the  realization  of  their  social  usefulness,  which  is  the 
purpose  of  the  association.  Even  when,  in  order  to  attain  that  end,  it  may  be 
of  general  interest  that  the  legal  entities  extend  their  sphere  of  activity  to 
foreign  countries,  they  cannot  do  so  without  the  authorization  of  the  sovereign 
of  the  foreign  state,  granted  to  them  in  the  form  of  recognition  or  otherwise. 
What  we  have  said  of  the  nation,  people  and  uncivilized  people  cannot  be 
applied  to  legal  entities.  It  is  a  fact  that  in  the  case  of  the  former,  the  bond  of 
union  is  based  on  human  nature  and  finds  its  efficient  cause  in  natural  factors. 
On  the  other  hand,  as  regards  legal  entities,  this  bond  results  from  their  pur- 
pose, in  consideration  of  which  the  government  has  given  them  the  right  to  be 
the  subjects  of  law.  It  follows,  therefore,  that  such  persons  cannot  de  jure  ex- 
tend their  sphere  of  activity  into  foreign  countries  without  the  previous  authori- 
zation of  the  sovereigns  of  those  states.  Cf .  Fiore,  Dirilto  inlernazion.  privalo, 
4th  ed.,  vol.  I,  parte  speciale,  Cap.  II, — ConsuUazione  sulla  controversia  fra  la 
Grecia  e  la  Romania.  Svccessioiie  Zappa. — Delia  personalitd  giuridica  dei  corpi 
morali,  Extract  from  Giurisprwdenza  Ilaliana,  vol.  XLVl-XLVII. 


TITLE  III 

POLITICAL  CONSTITUTION  OF  THE  STATE  WITH 
REGARD  TO  PERSONALITY 

101.  The  political  constitution  of  the  State  and  its  modifications 
should  be  considered  as  matters  subject  to  public  internal  law.  Yet 
the  political  constitution,  in  so  far  as  it  establishes  the  sovereignty 
of  the  State  and  regulates  the  form  of  political  organization,  exer- 
cises its  influence  on  the  international  personality  of  the  State 
where  the  exercise  of  the  international  rights  of  the  State  is  con- 
cerned. 

SIMPLE   STATE 

102.  Every  political  organization  having,  according  to  its 
constitution,  a  single  undivided  and  permanent  central  power, 
assigned  to  a  ruler  invested  with  the  right  to  represent  the  State 
and  to  contract  international  obligations  in  its  name,  is  called  a 
simple  State.  A  state  so  organized  has  without  doubt  a  single 
international  personality. 

France,  Italy,  Russia  and  Spain  are  simple  states. 


COMPOUND    STATE 

103.  A  compound  state  is  one  formed  by  the  union  of  several 
states  which  have,  by  virtue  of  a  constitutional  agreement,  es- 
tablished a  central  power,  which  exercises  sovereign  functions  in 
their  behalf,  represents  them  in  their  relations  with  other  states 
and  is  empowered  to  contract  international  obligations  in  their 
name  and  to  protect  their  rights  and  interests  in  their  relations 
with  other  states. 

A  compound  state  may  present  different  forms  of  structure: 
federal  union,  real  union,  personal  union,  or  confederation. 

122 


INTERNATIONAL    PERSONALITY    OF   THE   STATE  123 


VARIOUS   FORMS  OP  A  COMPOUND   STATE 

104.  A  compound  state  may  assume  the  form  of  united  states, 
incorporate  states,  federated  states,  federal  empire,  or  real  union, 
whenever  a  central  power  representing  the  union  of  states  is  es- 
tablished. Whenever  united  states  give  a  unitary  form  to  their 
union,  their  international  personality  must  be  considered  as  single 
or  sole. 

The  structure  of  states  under  the  authority  of  a  common  sovereign  is  ca- 
pable of  various  forms.  One  of  these  forms  is  represented  by  the  union  of  the 
United  States  of  America  and  that  of  the  Swiss  cantons.  This  is  the  result  of 
the  submission  of  independent  states  to  the  authority  of  a  central  power, 
superior  and  sovereign,  not  only  as  regards  its  powers  with  respect  to  the 
associated  states  or  cantons,  but  particularly  in  its  relations  with  foreign 
governments.  Consequentlj^  the  sovereign  of  the  union  has  the  power  to 
negotiate  and  conclude  treaties  of  alliance  and  commerce  in  conformity  with 
the  rules  established  by  the  constitutional  law;  to  declare  war  and  conclude 
treaties  of  peace;  to  accredit  and  receive  diplomatic  agents;  to  exercise  all  the 
international  rights  belonging  to  each  state  and  to  assume  international 
obUgations.    This  sort  of  union  is  called  "federal  State." 

Another  form  of  union  is  called  real  or  incorporate.  This  is  the  result  of 
the  union  of  two  or  more  states,  which  preserve  their  own  individuality  in 
matters  of  public  internal  law,  but  at  the  same  time,  recognize  a  single  sov- 
ereign power  charged  to  represent  them  in  international  relations,  to  exercise 
rights  against  and  to  contract  obligations  with  other  states. 

Sweden  and  Nonvaj',  united  under  the  authority  of  a  single  ruler  by  virtue 
of  the  act  of  Charles  XIII  of  August  6,  1815,  each  had  its  own  government, 
its  special  legislation,  its  own  parliament  and  its  distinct  cabinet  ministers, 
so  that  while  each  preserved  its  individuahty  in  its  internal  relations,  they 
were  represented  in  the  exercise  of  international  rights  by  a  single  sovereign 
power.  In  effect,  the  power  to  conclude  treaties,  to  receive  and  accredit 
diplomatic  agents  and  to  regulate  all  affairs  of  common  interest  in  the  relations 
of  the  two  states  with  foreign  countries  was  exclusively  granted  to  the  King  of 
Sweden.  That  union,  which  had  the  characteristics  of  a  real  union,  has  ceased 
to  exist  owing  to  the  separation  of  the.se  two  countries  on  the  26th  of  October, 
1905.  In  like  manner,  the  union  of  the  three  kingdoms  of  England,  Scotland 
(united  since  1707),  and  Ireland  (united  since  1801),  under  the  name  of  United  ' 
Kingdom  of  Great  Britain,  is  an  instance  of  what  English  publicists  call 
incorporate  union. 

Another  example  of  union  is  found  in  the  German  Empire.  It  also  has  the 
character  of  a  compound  state,  but  in  the  unitary  form,  in  spite  of  the  ab.sence 
of  any  establishment  of  a  central  power,  separate  and  distinct  from  the  sovereign 
power  belonging  to  each  of  the  confederated  states.  It  is,  in  fact,  the  King 
of  Prussia  who  has  joined  the  imperial  crown  to  his  royal  crown,  in  consequence 
of  which  the  central  power  is  in  the  hands  of  one  of  the  confederated  states. 
Therefore,  in  effect,  all  the  German  states,  great  and  small,  arc  dependents  of 
the  King  of  Prussia,  now  the  Emperor,  who  represents  all  the  states  in  the 
German  Empire  and  exercises  in  their  name  all  international  rights.  Bavaria 
alone,  for  certain  particular  interests,  has  retained  the  right  of  legation.    With 


124  INTERNATIONAL   LAW   CODIFIED 

that  exception,  since  the  exercise  of  all  international  rights,  the  conclusion  of 
treaties,  declaration  of  war,  conclusion  of  peace  and  diplomatic  relations,  is 
assigned  to  the  Emperor,  there  is  no  doubt  that  the  international  personality 
of  all  the  states  of  the  German  Empire  is  one. 

The  character  of  each  of  these  forms  of  union  is  determined  by  constitutional 
agreement.  The  manner  in  which  the  exercise  of  the  powers  is  regulated  ac- 
cording to  public  internal  law,  is  of  no  moment;  from  the  point  of  view  of 
international  law,  all  that  is  required  is  to  determine  how  the  sovereign  power 
in  its  relations  with  other  states  is  to  be  personified.  Wlien  the  exercise  of  such 
a  power  is  granted  to  a  single  personality,  no  matter  whether  the  form  of  union 
be  federative,  real  or  incorporate,  only  a  single  international  personality  can 
be  admitted. 

105.  When,  according  to  the  constitutional  agreement  of  union, 
each  of  the  component  states  has  international  capacity  with  re- 
gard to  certain  acts  limited  to  its  own  particular  interest,  inter- 
national personality  is  not  bestowed  on  each  of  them,  but  only  the 
capacity  to  perform  these  acts  within  the  limits  strictly  specified 
by  constitutional  law. 

PERSONAL  UNION 

106.  Two  autonomous  states,  entrusting  to  the  same  person  the 
power  to  exercise  sovereign  rights  and  to  represent  them  in  their 
relations  with  other  states  are  considered  in  personal  union,  and 
each  of  them  has  its  own  international  personality  distinct  from 
that  of  the  other. 

The  bond  of  personal  union  does  not  imply  the  confusion  of  the  individuality 
of  the  two  states  and  consequently  the  confusion  of  international  personality 
of  both.  Two  states  completely  independent  of  one  another  in  every  respect, 
which  have  given  to  the  same  person  the  authority  to  represent  them  in  their 
relations  with  other  states,  must  on  that  account  be  considered  as  subject  to 
personal  union.  It  should  be  said,  however,  that  the  title  of  sovereign  rights 
with  regard  to  each  of  these  two  states  is  not  the  same  and  their  exercise  may 
consequently  cease  for  one  while  it  continues  for  the  other.  Personal  union  is 
not,  therefore,  by  nature  permanent. 

Under  the  provisions  of  the  final  act  of  the  Congress  of  Vienna  (arts.  67  and 
71),  the  Kingdom  of  the  Netherlands  and  the  Grand-Duchy  of  Luxemburg 
were  constituted  in  a  personal  union.  This  situation  lasted  until  the  death 
of  William  III,  that  is,  until  November  23,  1890.  Since,  according  to  the 
constitution  of  the  Grand-Duchy,  the  ruler  of  that  state  could  not  be  a  woman, 
and  the  daughter  of  William  III  succeeded  him  as  queen  of  the  Netherlands, 
the  Grand  Duke  Adolph  of  Nassau  became  ruler  of  Luxemburg,  in  accordance 
with  the  act  of  June  30,  1783,  and  the  treaties  of  Vienna  of  1815  and  of  London, 
May  11,  1867. 

The  same  thing  occurred  with  regard  to  the  personal  union  of  Great  Britain 
and  the  Kingdom  of  Hanover  which  ceased  in  1838,  because  under  the  provi- 


INTERNATIONAL    PERSONALITY    OF   THE    STATE  125 

siuiis  of  the  British  constitution  a  woman  could  reign,  while  under  the  Han- 
overian constitution  a  woman  could  succeed  to  the  throne  only  in  the  absence 
of  male  descendants  in  collateral  lines. 


STATUS   OF    COLONIES 

107.  Colonies  consist  of  the  over-seas  possessions  of  states. 
Their  inhabitants  have  no  poUtical  autonomous  organization,  but 
are  in  fact,  subject  to  the  power  and  superior  jurisdiction  of  the 
sovereign  of  the  state  to  which  they  belong. 

108.  Colonies  have  no  international  personality.  Even  when 
they  enjo}^  a  limited  autonomy  with  regard  to  their  own  govern- 
ment and  the  authority  to  perform  certain  well-defined  acts  of  an 
international  character,  they  must  be  considered  as  parts  of  the 
state  to  which  they  belong,  until  they  have  constituted  themselves 
as  independent  states. 

The  legal  status  of  colonies,  the  various  degrees  of  their  political  dependency 
and  their  power  to  perform  certain  acts  in  their  relations  with  foreign  coun- 
tries can  be  determined  only  by  referring  to  the  special  laws  enacted  by  the 
government  of  the  state  to  which  the  colony  belongs,  and  by  studying  the 
succession  of  events  which  may  have  modified  in  law  and  in  fact,  the  status 
of  any  colony.  It  can  only  be  said  that,  as  a  rule,  so  long  as  the  dej)endency 
exists  and  the  colony  has  not  been  able  to  free  itself  completely  from  the  dom- 
inant state,  sovereignty,  in  everything  relating  to  its  functions  and  rights  within 
the  domain  of  international  law,  extends  over  its  colonial  domain,  which  in 
fact  must  be  considered  as  a  possession  of  that  state.  See  Catellani,  Le 
colonie  el  la  Conferenza  di  Berlino. 

109.  The  right  of  colonies  to  free  themselves  from  the  domina- 
tion of  the  mother  country  and  to  form  their  own  independent 
government  is  a  legitimate  right  which  belongs  to  all  peojoles  or 
nations.  The  struggle  between  the  colony  and  its  mother  country 
should  be  governed  by  the  same  rules  as  apply  to  civil  war  waged 
with  the  purpose  of  effecting  a  separation  within  a  state  and  of 
establishing  a  government  in  conformity  with  the  wish  of  the 
majority.  ♦ 

VASSAL   STATES 

110.  When  a  state  in  the  exercise  of  its  sovereign  powers  is  in 
law  and  in  fact  subject  to  the  sovereignty  of  another  state  and  is 
not  able  to  exercise  rights  and  assume  obligations  in  international 
affairs  except  with  the  permission  of  the  state  which  exercises 


126  INTERNATIONAL  LAW   CODIFIED 

supreme  authority  over  it,  it  must  be  considered  a  vassal  of  that 
state,  known  as  its  suzerain. 

111.  The  relation  of  vassalage  must  be  deemed  exceptional 
and  abnormal  and  its  consequences  in  the  domain  of  interna- 
tional law  must  be  necessarily  limited  like  those  arising  from  any 
form  of  bondage. 

112.  As  long  as  the  subjection  of  the  vassal  state  to  the  suzerain 
state  lasts,  the  vassal  state  does  not  enjoy  complete  international 
personality. 

113.  The  attempt  of  vassal  states  to  acquire  complete  independ- 
ence and  to  free  themselves  from  the  domination  of  their  suzerain 
must  be  considered  as  within  their  legitimate  right  and  they  must 
be  protected  in  accordance  with  the  principles  of  international  law. 

Armed  conflict  between  the  vassal  state  and  the  suzerain  must 
be  subject  to  the  rules  applicable  to  any  form  of  civil  war. 

The  subordination  of  a  vassal  state  to  a  suzerain  is  greater  than  that  arising 
from  a  protectorate.  It  may  assume  various  forms  resulting  from  feudal 
bonds,  which  were  the  origin  of  vassalage.  Civilization  tends  to  establish  the 
principle  of  unity  of  sovereignty,  because  in  reality  dualism  cannot  subsist, 
as  history  shows.  The  condition  of  the  vassal  states  of  Turkey  was  modified 
by  the  stipulations  of  the  treaty  of  Berlin  of  1878.  Vassalage  must  be  con- 
sidered as  an  anomaly  according  to  modern  international  law,  because  it 
implies  a  capitis  diminutio.  Therefore,  with  the  progress  of  civilization,  vassal- 
age must  naturally  tend  to  disappear  in  countries  still  subject  to  the  supreme 
authority  of  a  foreign  government. 

See,  with  regard  to  the  present  condition  of  semi-sovereign  states,  Calvo, 
Droit  intern.,  v.  I,  §  64;  Pradier-Fod6r6,  v.  I,  86,  110;  Rivier,  op.  cit.,  v.  I,  §  4, 
p.  79;  Bonfils,  Droit  intern,  public,  §§  188  et  seq.;  Despagnet,  Droit  intern.,  §  127. 


TRIBUTARY   STATES 

114.  A  tributary  state  is  one  which  pays  tribute  to  another  state 
for  an  indefinite  period. 

The  payment  of  tribute  cannot  always  be  considered  as  an  evi- 
dence of  dependency.  It  may  sometimes  be  an  imposition  in- 
flicted by  the  stronger  upon  the  weaker  state  to  save  the  latter 
greater  difficulties,  and  sometimes  a  spontaneous  offer  made  to 
avoid  annoyance  and  to  secure  the  good  will  of  another  state. 

Grotius,  in  speaking  of  states  which  pay  tribute,  says:  "I  do  not  see  any 
reason  to  question  their  sovereignty,  although  the  acknowledgment  of  their 
weakness  detracts  somewhat  from  their  dignity."  Le  Droit  de  la  guerre,  liv.  I, 
ch.  Ill,  §  22,  translation  of  Pradier-Fod6r6,  p.  282. 


INTERNATIONAL  PERSONALITY  OF  THE  STATE       127 

Vattel  writes:  "The  custom  of  paying  tribute  was  frequent  in  former  times: 
the  weaker,  by  means  of  it,  buying  off  the  aggressions  of  the  stronger  or  pro- 
curing the  latter's  protection  at  this  price  without  ceasing  to  be  sovereign." 
Droit  des  gens,  hv.  I,  ch.  I,  §  7. 

Formerly,  the  principal  European  maritime  powers  paid  tribute  to  the 
Barbary  states  to  exempt  themselves  from  the  annoyances  of  the  latter.  This 
payment,  however,  did  not  in  any  way  affect  either  the  sovereignty  or  the 
independence  of  these  powers.  See  Wheaton,  International  law,  v.  I,  §  14, 
pp.  48-49;  Calvo,  Le  Droit  international  theorique  et  pratique,  v.  I,  §  43;  Bonfils, 
Droit  intern.,  3d  ed.,  §  191. 

115.  Tribute  paid  by  a  vassal  state  to  a  suzerain  state  is  a 
manifest  acknowledgment  of  its  dependency  and  its  submission 
to  its  sovereign  power. 

Such  is  the  tribute  paid  by  Egypt  as  vassal  state  to  Turkey.  It  amounts  to 
the  yearly  sum  of  750,000  pounds  sterling  (18  million  francs).  See,  with 
regard  to  the  present  status  of  Egypt,  Bonfils,  Droit  intern.,  §  189,  and  the 
authors  cited  by  him.  Also  Oppenheim,  Int.  law,  2d  ed.,  pp.  142,  164.  [Great 
Britain  declared  Egypt  to  be  a  protectorate  on  December  18,  1914 — Transl.] 


PROTECTED    STATES 

116.  A  state  which  is  not  in  the  same  condition  of  culture  as 
civilized  states,  or  which,  owing  to  its  weakness,  does  not  possess 
sufficient  means  to  protect  its  rights  in  its  relations  with  other 
states,  may  place  itself  under  the  protection  of  a  more  powerful 
state  and  consent  to  be  represented  by  that  state  in  international 
affairs  in  acts  within  the  domain  of  international  law. 

Treaties  establishing  a  protectorate  have  become  numerous  in  our  time. 
Germany,  Great  Britain  and  France  are  foremost  with  regard  to  protectorates 
established  in  Africa,  over  several  islands  in  Oceanica  and  in  other  regions. 
Cf.  Bonfils,  Droit  int.,  §§  182  et  seq.,  and  the  full  bibliography  there  cited. 

117.  The  relation  of  protectorate  can  be  established  only  by 
express  consent  and  when  such  consent  exists,  the  legal  authority 
of  the  protected  state  as  regards  the  exercise  of  sovereign  powers 
in  international  relations  cannot  be  limited  except  by  the  clauses 
of  the  treaty  establishing  the  protectorate,  which  cannot  be  given 
a  broad  or  liberal  interpretation. 

118.  When,  under  the  clauses  of  the  treaty  of  protection,  the 
protected  state  is  deprived  not  only  of  legal  capacity  de  jure  and 
de  facto  in  its  international  relations,  but  is,  besides,  subject  to  the 
protecting  state  in  the  exercise  of  its  sovereign  powers  at  home, 


128  INTERNATIONAL   LAW   CODIFIED 

the  condition  thus  arising  constitutes  a  veritable  annexation  under 
the  form  of  a  protectorate. 

119.  A  protectorate,  although  established  by  treaty,  can  be 
considered  valid  by  other  states  only  from  the  time  of  its  due 
notification  to  each  of  them  by  the  government  assuming  the  pro- 
tectorate, and  upon  their  acquiescence  therein. 

This  rule  was  established  by  the  treaty  of  BerUn  of  February  26,  1885,  of 
which  article  34  reads  as  follows:  "...  a  power  which  assumes  a  protectorate 
there,  shall  accompany  the  respective  act  with  a  notification  thereof  addressed 
to  the  other  signatory  powers  of  the  present  act,  in  order  to  enable  them  if 
need  be  to  make  good  any  claims  of  their  own." 

120.  It  is  incumbent  upon  the  state  which  has  assumed  the  pro- 
tectorate to  assure  the  protected  territories  freedom  of  interna- 
tional commerce  and  to  establish  therein  a  force  invested  with 
sufficient  authority  to  induce  respect  for  international  law. 

This  rule  is  based  on  the  rule  sanctioned  in  article  35  of  the  above-mentioned 
treaty  of  Berlin,  which  reads:  "The  signatory  powers  of  the  present  act 
recognize  the  obligation  to  insure  the  establishment  of  authority  in  the  regions 
occupied  by  them  on  the  coasts  of  the  African  continent,  sufficient  to  protect 
existing  rights  and,  as  the  case  may  be,  freedom  of  trade  and  of  transit  under 
the  conditions  agreed  upon." 

This  rule  providing  for  the  occupation  of  the  coast  of  Africa  should  in  our 
opinion,  as  we  have  already  said,  include  the  protectorate.  See  Fiore,  Dirillo 
internaz.  pubblico,  v.  II,  4th  ed.,  Appendix,  p.  628. 

121.  The  legal  status  resulting  from  the  protectorate  is  excep- 
tional and  may  be  likened  to  that  of  a  minor  under  guardianship 
or  to  a  person  alieni  juris  for  incompetence.  This  condition  may 
last  as  long  as  do  the  circumstances  which  gave  rise  to  it. 

122.  The  protecting  state  cannot,  by  virtue  of  a  stipulation  of 
established  and  accepted  protectorate  take  advantage  of  the  ab- 
solute right  to  compel  the  protected  state,  by  force,  to  remain 
subject  to  its  protection. 

The  relation  of  protectorate  introduced  in  modern  times  constitutes  a 
veritable  anomaly,  like  suzerainty  and  vassalage.  As  a  matter  of  fact,  the 
protectorate  creates  an  abnormal  situation  between  a  stronger  state  and  a 
weaker  one.  One  guarantees  existence  to  the  other  and  the  more  or  less 
limited  exercise  of  sovereign  powers  at  home,  while  the  other  agrees,  in  all 
matters  relating  to  its  international  life  and  relations  with  other  states,  to  be  sub- 
ject to  the  sovereignty  of  its  protector.  Thus,  a  dualism  is  established  with 
regard  to  the  sovereignty  of  the  protected  state  which,  from  a  certain  point 
of  view,  subsists  and  from  another,  is  annihilated  or  at  least  subordinated  to  a 
foreign  sovereignty.    As  sovereignty  tends  naturally  toward  unity,  it  is  quite 


INTERNATIONAL  PERSONALITY  OF  THE  STATE       129 

evident  that  the  relation  of  protectorate  cannot  last  forever,  but  is  destined 
to  disappear,  either  through  the  complete  annexation  of  the  protected  state, 
or  through  its  emancipation. 

The  protectorate  of  France  over  the  island  of  Madagascar,  by  virtue  of  the 
treaty  concluded  December  17,  1885  with  the  queen  of  the  Hovas,  resulted 
finally  in  the  annexation  of  the  island,  which  was  proclaimed  a  French  colony 
by  the  law  of  August  6,  1896. 

123.  Armed  conflict  between  the  protected  and  the  protecting 
states  to  break  off  the  relation  of  protectorate  should  be  subject 
to  the  rules  of  the  following  title  which  apply  to  any  form  of 
warlike  contest  within  a  state  involving  political  questions  of  pub- 
lic concern. 


TITLE  IV 

TRANSFORMATIONS  OF  THE  PERSONALITY  OF  THE 

STATE 

CIVIL   WAR 

124.  Any  form  of  armed  internal  struggle  by  persons  subject 
to  the  authority  of  the  same  sovereign  constitutes  civil  war,  when 
these  persons,  militarily  organized  and  observing  the  laws  of  war, 
engage  in  hostilities  to  settle  a  question  of  public  law. 

125.  Civil  war  must,  in  principle,  be  subject  to  the  internal  laws 
of  each  state;  but  so  far  as  its  exterior  effects  are  concerned,  it 
may  be  governed  by  international  law. 

The  character  of  civil  war  may  be  assigned  to  armed  conflict  between  citizens 
of  a  state  militarily  organized  and  the  forces  of  the  government,  for  the 
purpose  of  changing  the  political  constitution  of  the  state.  The  same  character 
is  attributed  to  armed  conflict  between  two  countries  which  by  virtue  of  an 
agreement  of  union,  are  subject  to  the  same  ruler,  either  in  the  relation  of  real 
subordination  which  binds  vassal  or  semi-sovereign  states  together  or  the 
relation  of  real  union  which  brings  together  incorporate  states,  or  that  of 
federal  union  which  unites  confederated  states  or  states  constituted  as  a 
federative  empire.  Provided  that  such  states  have  a  single  international  per- 
sonality and  that  their  struggle  tends  to  disrupt  the  union,  the  contest  should 
be  considered  as  civil  war.  Consequently,  to  mention  instances  in  modern 
times,  we  should  not  only  consider  as  civil  wars  the  armed  struggles  in  Portugal 
between  the  partisans  of  Queen  Dona  Maria  and  those  of  Don  Miguel,  and 
in  Spain  between  the  partisans  of  Isabella  II  and  those  of  Don  Carlos,  but  we 
must  also  consider  as  such  the  war  of  secession  in  the  United  States  of  America 
(1860-1865)  and  the  wars  of  independence  between  colonies  and  their  mother 
country,  and  more  particularly,  those  between  Cuba  and  Spain  (cf.  Calvo, 
Droit  internal.,  v.  I,  §§  84  et  seq.,  v.  IV,  §§  1882  et  seq.;  and  Rivier,  op.  cit.,  v.  I, 
pp.  83  et  seq.,  v.  II,  pp.  213  et  seq.;  Pradier-Fod6r6,  Traite  de  droit  international 
public,  v.  I,  §  378). 

126.  A  neutral  power  may  or  may  not  recognize  the  insurgents 
as  belligerents;  but  this  recognition  cannot  prevent  the  government 
of  the  state  from  considering  and  treating  them  as  rebels,  until 
the  armed  struggle  really  assumes  the  obvious  character  of  civil 
war,  when  it  is  no  longer  possible  justly  to  deny  the  application 
of  the  laws  which  must  govern  war.    (Cf.  rule  128.) 

130 


CHANGES   IN   PERSONALITY   OF  THE   STATE  131 

SEPARATION    FROM   A   CONSTITUTED    STATE 

127.  The  people  who  constitute  part  of  a  state  may  separate 
from  it  and  form  an  autonomous  and  independent  state.  They 
may  claim  this  right  for  themselves  by  all  means  legitimate  ac- 
cording to  public  internal  law  and  international  law. 

128.  The  government  established  by  virtue  of  the  political 
constitution  or  agreement  of  union  may  treat  those  concerned 
in  the  separation  as  rebels  and  apply  the  nmnicipal  law  to  them. 
Nevertheless,  when  they  succeed  in  obtaining  military  organiza- 
tion or  in  occupjang  a  part  of  the  territory  of  the  state  by  armed 
force,  and  maintain  a  sufficient  force  to  wage  war  against  the  army 
of  the  government  and  comply  with  the  laws  of  war,  they  may 
demand  that  international  law  be  applied  to  them. 

It  is  extremely  difficult  in  this  matter  to  lay  down  precise  rules  for  deter- 
mining when  the  criminal  law  should  he  applied  to  the  insurgents  and  when 
they  must  be  treated  as  belligerents  governed  by  international  law.  Every- 
thing depends  on  the  circumstances,  length  and  extent  of  the  insurrection 
and  on  the  means  at  the  disposal  of  the  insurgents  to  enable  them  to  win. 
When  the  insurrection,  by  reason  of  its  importance,  can  be  called  the  result  of 
the  collective  will  of  so  large  a  number  of  people  that  they  all  but  form  the 
majority,  and  when  the  insurgent  party,  owing  to  the  elements  of  strength  at 
its  disposal,  succeeds  in  avoiding  all  measures  of  repressive  justice,  such  an 
exceptional  condition  must  be  considered  as  a  fact  subject  to  international 
rather  than  municipal  law. 

The  government  of  the  United  States  displayed  political  wisdom  in  treating 
as  enemies  the  states  which,  from  1860  to  1S65,  fought  to  secede  from  the 
Union,  and  by  applying  to  them  the  laws  of  war,  instead  of  the  provisions 
of  the  criminal  law  punishing  acts  of  rebellion. 

129.  The  recognition  or  non-recognition  of  insurgents  as  bel- 
ligerents must  be  left  to  the  judgment  of  each  of  the  neutral  powers. 
Nevertheless,  aside  from  such  i-ecognition,  the  insurgents  cannot 
in  international  relations  be  considered  as  malefactors  or  free- 
booters, but  the  acts  performed  by  them  in  the  course  of  the  armed 
conflict  must  be  deemed  acts  of  war,  if  they  abide  by  the  rules  of 
international  law  and  the  customs  accepted  by  civilized  people 
with  regard  to  ordinary  war. 

In  the  application  of  this  rule,  it  is  necessary  to  point  out  that,  even  though 
the  belligerency  of  the  revolutionary  party  had  not  been  duly  recognized,  the 
seizure  of  the  property  of  the  enemy  in  conformity  with  the  usages  of  war 
could  not  be  considered  as  an  act  of  piracy.  It  would  not  be  possible,  there- 
fore, in  such  a  case,  to  apjily  the  rules  of  international  law  relating  to  piracy, 
which  we  shall  set  forth  Iiereafter. 


132  INTERNATIONAL   LAW   CODIFIED 

WARS  OF  SECESSION  FROM  THE  POINT  OF  VIEW  OF  PERSONALITY 

130.  Conflict  between  the  seceding  party  and  the  state  does  not 
.'pso  facto  modify  the  personality  of  the  states.  If,  however,  the 
seceders  succeed  in  estabhshing  a  government  which  in  fact  ex- 
ercises sovereign  functions  in  an  autonomous  and  independent 
manner  and  maintains  sufficient  means  to  support  itself,  the 
personality  of  the  state  may  be  considered  as  divided  into  two 
parts. 

131.  The  division  of  a  state  into  two  or  more  states  becomes 
effective  and  final  in  its  effect  on  international  relations,  only  after 
the  failure  of  the  means  resorted  to  by  the  government  of  the  state 
to  restore  its  authority  over  the  seceding  parts,  and  the  effective 
and  permanent  character  of  the  new  state  formed  by  the  seceding 
subdivisions  or  provinces  has  been  ascertained. 

RELATIONS   BETWEEN   THE   NEW   STATE   AND   OTHER   STATES 

132.  A  new  state  constituted  as  a  result  of  secession  can  es- 
tablish international  relations  as  an  autonomous  and  independent 
state  only  with  the  states  which  have  recognized  it. 

Aside,  however,  from  recognition,  such  acts  as  are  accomplished 
by  the  government  established  during  the  war  are  considered  acts 
of  government,  and  with  respect  to  their  international  conse- 
quences, the  rules  governing  the  acts  of  a  belligerent  power  during 
military  occupation  should  be  applied. 

This  rule  is  bused  ou  the  general  principle  that  in  international  relations  he 
who  de  facto  regit  must  be  deemed  sovereign. 

133.  Treaties  concluded  by  the  original  state  from  which  the 
provinces  or  countries  seceded  do  not  continue  to  apply  to  the 
new  state  established  as  a  result  of  the  secession. 

The  English,  Spanish  and  Portuguese  colonies  which  separated  from  the 
mother  country  and  formed  independent  states  were  considered  as  distinct 
and  autonomous  persons.  Consequently,  the  treaties  concluded  by  the  mother 
countries  were  not  considered,  binding  upon  these  new  states.  Cf.  Bonfils, 
Droit  intern.,  §§  100-101. 

134.  The  obligations  incumbent  upon  the  old  state  and  upon  the 
new  state  formed  as  a  result  of  the  secession,  in  so  far  as  concerns 
the  public  debt  and  engagements  to  private  individuals  contracted 


CHANGES   IN    PERSONALITY   OF   THE   STATE  133 

by  the  state  prior  to  the  secession,  are  to  be  governed  by  the  con- 
vention expressly  conchided  between  the  old  and  the  new  state. 

In  the  absence  of  such  convention,  the  rules  governing  these 
legal  relations  in  case  of  cession  must  by  analogy  be  applied. 


RESTORATION 

135.  In  case  of  restoration,  the  sovereign  of  the  state  recovers 
entirely  the  exercise  of  his  sovereign  rights  with  regard  to  the 
regions  occupied  by  the  seceding  insurgents,  just  as  if  there  had 
been  no  interruption  or  discontinuance,  with  the  qualification, 
however,  of  observing  rights  acquired  by  neutrals  during  the  con- 
flict or  interregnum  up  to  the  day  of  the  restoration. 

136.  The  restored  ruler  cannot  be  permitted  to  make  use  of  his 
sovereign  rights  retroactively,  or  to  disavow  the  acts  of  the  govern- 
ment instituted  by  the  seceding  insurgents,  provided,  however, 
that  such  government  has  fulfilled  its  duties  without  violating 
international  law. 

This  rule  is  based  on  the  idea  that  in  relations  of  public  municipal  law,  the 
person  holding  de  facto  the  sovereign  power  may  exercise  all  the  rights  and 
functions  of  the  government  and  compel  private  individuals,  citizens  and 
foreigners,  to  recognize  the  force  of  his  command  and  the  authority  of  his  acts. 


A   STATE    FORMED    BY   THE    UNION   OF   SEVERAL    STATES 

137.  When  several  states  unite  to  form  a  new  one,  the  result  is 
the  extinction  in  fact  and  in  law  of  the  right  of  personality  of  each 
of  the  states  and  the  birth  of  the  international  personality  of  the 
new  state  arising  out  of  the  union. 

138.  The  new  state  thus  established  must  be  considered  the 
successor  in  entirety  of  the  several  united  states  in  all  that  relates 
to  obligations  toward  private  individuals  as  well  as  toward  third 
powers,  and  in  these  matters  the  rules  governing  such  relations 
in  case  of  annexation  should  be  applied. 

139.  Treaties  concluded  by  each  of  the  states  shall  not  be  deemed 
binding  as  of  right  upon  the  state  formed  by  their  union.  Never- 
theless, such  treaties  as  are  compatible  with  the  political  constitu- 
tion and  public  law  of  the  new  state  may  be  considered  binding 
until,  within  the  shortest  time  possible,  they  shall  be  renewed. 


134  INTERNATIONAL   LAW    CODIFIED 


COMPLETE    ANNEXATION   OF   THE    STATE 

140.  Complete  annexation  takes  place  when  an  autonomous  and 
independent  state  is  either  of  its  own  free  will  or  by  force  incor- 
porated in  another  state. 

141.  The  state  which  bj''  reason  of  its  voluntary  or  forcible  in- 
corporation becomes  an  integral  part  of  the  annexing  state  loses  its 
international  personality,  which  is  absorbed  in  that  of  the  state 
which  effects  the  complete  annexation. 

142.  Annexation  ends  ipso  jure  ipsoque  facto  the  exercise  by  the 
annexed  state  of  every  sovereign  right  in  international  relations. 
It  also  ends  any  personal  duty  on  the  part  of  such  state  as  regards 
the  fulfillment  of  the  international  obligations  assumed  before  the 
annexation.  The  state  for  whose  aggrandizement  the  annexation 
was  undertaken  succeeds  to  the  annexed  state  in  that  respect. 

The  rule  must  be  applied  to  the  rights  and  obligations  which  had  at- 
tached to  the  sovereign  state  before  it  ceased  to  exist.  The  idea  of  succession 
to  rights  and  duties  applicable  in  so  far  as  it  is  possible  in  relations  of  public 
and  private  law  in  the  case  of  cession  of  a  part  of  the  territory  of  a  state,  is 
applicable  with  still  more  reason  when  the  state  ceases  to  exist  in  consequence 
of  total  annexation,  or  when  several  states  cease  to  exist  by  reason  of  their 
fusion  into  a  single  state.  International  personality  undoubtedly  disappears; 
but  as  neither  the  territory  nor  the  population  disappear,  so  the  territorial  ' 

and  economic  personality  of  the  extinct  state  does  not  disappear.  Conse- 
quently it  must  be  admitted  that  all  rights  and  duties  are  transferred  to  its 
successor,  which  continues  the  economic  and  corporate  personality  of  the 
state. 

At  the  time  of  the  annexation  of  Hanover,  Electoral  Hesse,  the  Duchy  of 
Nassau  and  the  city  of  Frankfort-a-Main,  Prussia,  by  the  law  of  September  22, 
1866,  declared  itself  responsible  for  the  debts  and  all  international  obligations 
of  these  states. 

f 

143.  Treaties  concluded  by  the  annexing  state  must  be  ipso 
jure  ipsoque  facto  considered  as  extending  to  the  annexed  state. 

Treaties  concluded  by  the  annexed  state  resulting  in  an  inter- 
national servitude  established  for  the  advantage  of  third  powers, 
should  be  respected. 

Treaties  resulting  in  reciprocal  advantages  and  obligations 
between  the  annexed  state  and  another  state,  may  be  enforced  if 
the  annexing  state  intends  to  take  advantage  of  them,  by  limiting 
them  to  the  territory  of  the  annexed  state,  and  if  there  is  no  oppo- 
sition from  the  state  which  signed  them. 


! 


CHANGES   IN   PERSONALITY    OF  THE   STATE  135 

The  first  part  of  this  rule  is  based  on  the  theory  that  except  in  the  case  of 
express  declaration  to  the  contrary,  treaties  are  concluded  to  be  applied  to  all 
the  territory  of  the  state  and  that,  in  principle,  the  possibility  of  the  territorial 
extension  of  the  states  with  which  they  are  concluded  must  be  contemplated. 

The  second  part  is  founded  on  the  general  principles:  Res  transit  cum  onere 
suo; — Nemo  plus  juris  transferre  potest  quam  ipse  habet.  Consequently,  if  the 
annexed  state,  for  example,  has  concluded  a  treaty  limiting  its  right  to  rebuild 
or  erect  fortifications  on  its  boundaries,  or  creating  an  international  servitude, 
these  treaties  must  be  respected  by  the  annexing  state. 

With  regard  to  the  third  part  of  the  rule,  it  should  be  observed  that  it  is  not 
possible  to  maintain  absolutely  that  all  treaties  must  be  annulled  by  reason 
of  the  disappearance  of  the  subject  of  the  international  obligation.  On  the 
contrary,  it  must  be  admitted  that  the  treaties  concluded  by  the  extinguished 
state  from  which  those  rights  proceed  must  be  respected  by  the  annexing  state, 
so  long  as  they  have  not  been  expressly  revoked.  Consequently,  treaties  of 
extradition,  alliance  and  similar  treaties  connected  with  the  exercise  of  sover- 
eign rights  must  be  annulled.  But  it  would  not  be  possible  to  annul  ipso  jure 
ipsoque  facto,  treaties  relating  to  boundaries,  navigable  canals  and  thorough- 
fares. With  regard  to  treaties  of  commerce,  in  so  far  as  they  relate  to  private 
rights,  if  the  period  of  time  fixed  for  their  denunciation  has  not  expired,  the 
annexing  state  must  respect  them.  But  as  to  those  treaties  which  relate  to 
the  exercise  of  sovereign  rights,  as  for  example,  the  exercise  of  consular 
functions  in  the  respective  territories  and  the  rules  agreed  upon  for  the 
execution  of  judgments,  these  acts  must  be  considered  as  having  been  an- 
nulled by  reason  of  the  cessation  of  the  sovereign  rights  in  international 
relations. 

When  the  state  of  Texas  ceased  to  exist  by  reason  of  its  annexation  to  the 
United  States,  France  and  Great  Britain,  through  their  ministers,  notified 
the  government  of  Texas  that  the  treaties  of  commerce  previously  concluded 
should  be  considered  as  still  in  force  and  the  fulfillment  of  the  financial  obliga- 
tions contracted  by  that  government  should  be  still  binding.  (Lawrence, 
Commentaire,  v.  I,  p.  210.) 

144.  With  regard  to  the  payment  of  the  public  debt,  the  respect 
of  rights  acquired  by  private  individuals  and  public  officers  and 
every  sort  of  financial  obligation,  the  annexing  state  must  undoubt- 
edly be  considered  as  a  successor  in  entirety. 

At  the  time  of  the  annexation  of  Texas  to  the  United  States,  President  Tyler 
said  in  his  message:  "We  cannot  honorably  take  the  lands  without  assuming 
the  payment  of  all  the  debts  with  which  they  are  encumbered." 

145.  When  a  state  ceases  to  exist  because  of  annexation  to 
.several  states,  the  succession  both  in  rights  and  obligations  shall 
be  distributed  proportionately  among  the  annexing  states.  The 
proportion  shall  be  determined  by  taking  into  account  the  total 
amount  of  personal  and  real  taxes  collected  from  the  inhabitants 
and  real  estate  of  the  annexed  territory. 

For  the  apportionment  of  the  state  domain  to  the  different 


136  INTERNATIONAL  LAW   CODIFIED 

annexing  states,  the  same  rules  shall  apply  as  in  the  case  of  cession. 
146.  The  property  obligations  assumed  by  the  extinguished 
state  must  be  fulfilled  by  the  successor  state,  and  it  is  the  latter's 
duty  to  respect  the  rights  acquired  by  private  individuals  with 
regard  to  the  state's  property,  provided  that  such  rights  are  per- 
fect rights  and  not  mere  options  or  reversions. 


TITLE  V 

CESSION  OF  TERRITORY  AND  RESULTING 
ANNEXATION 

147.  The  cession  of  a  portion  of  territory  made  by  the  state  to 
which  it  belongs  to  the  state  acquiring  and  annexing  it  to  its  own 
territory,  may  take  place  voluntarily,  by  sale,  exchange  or  gift, 
or  forcibly  as  the  result  of  war.  The  cession  must  be  regulated  by 
a  treaty  concluded  in  conformity  with  the  rules  of  international 
law  and  the  public  law  of  the  two  contracting  parties. 

There  are  numerous  examples  of  cessions,  sanctioned  by  treaties,  for  an 
agreed  sum.  Such  was  the  case  of  Louisiana  sold  by  the  First  Consul  to  the 
United  States  under  the  provisions  of  the  treaty  of  Paris  of  1803,  and  that  of 
Russian  America  also  ceded  to  the  United  States  in  1867  for  .17,200,000.  See 
other  examples  in  Calvo,  §§  290  et  seq.;  Rivier,  v.  I,  pp.  197  el  seq. 

Forced  cessions  imposed  as  conditions  of  peace  have  usually  been  the  result 
of  war.  Thus,  Prussia  was  compelled  to  give  up  certain  territory  at  the  peace 
of  Tilsit  in  1807;  hkewise  France,  after  the  wars  of  1814-1815  and  the  war  of 
1870.  Austria  was  obliged  to  cede  Lombardy  to  Italy  after  the  war  of  1859 
^nd  Venice  after  the  war  of  1866. 

148.  The  consent  of  the  inhabitants  of  the  ceded  territory  can- 
not be  considered  necessary  to  render  the  cession  effective.  Never- 
theless, it  is  considered  advisable  in  order  to  prevent  opposition 
to  urge  the  representatives  of  the  ceded  state  to  vote. 

The  territory  of  a  state  cannot  possibly  be  considered  as  the  property  of  the 
prince.  Still  less  may  the  inhabitants  be  considered  as  accessories  of  the  terri- 
tory they  occupy.  Accordingly,  certain  authors  have  held  that  the  assent  of 
the  populations  of  ceded  countries  should  be  held  indispensable  for  the  effec- 
tualness  of  the  cession.  Nevertheless,  the  majority  now  agree  that  as  terri- 
torial cessions  always  take  place  for  reasons  of  public  interest,  their  effectual- 
ness  cannot  be  subordinated  to  the  formality  of  the  plebiscite. 

Thiers  spoke  as  follo\v3in  the  Legislative  Assembly  on  March  18,  1867:  "The 
new  principle  of  the  assent  of  the  people  is  an  arbitrary  one  very  often  mislead- 
ing and  at  bottom  only  a  principle  of  confusion  when  it  is  sought  to  be  applied." 

Every  matter  of  public  interest  must  as  a  rule  be  subject  to  the  ap|)roval 
of  the  whole;  it  is  sufficient,  however,  if  tlie  representative;  Iiodies  of  the  ceding 
Htate  recognize  the  public  necessity  or  advantage  of  elTcctitig  Mie  (session. 

Compare    Fiore,   Diritto    internazionale    puhbiia),    v.    11,    4th    ed.,   §  1123; 

137 


138  INTERNATIONAL  LAW   CODIFIED 

Rouard  De  Card,  Les  annexions  et  les  plebiscites  dans  Vhistoire  contemporaine; 
Lodijenski,  Des  plebiscites  en  droit  international,  1883. 

The  formality  of  the  plebiscite  is  sanctioned  in  several  treaties.  See  article 
I  of  the  treaty  of  Turin  of  March  24,  1860,  for  the  cession  of  Nice  and  Savoy. 
It  is  also  mentioned  as  a  condition  in  the  treaty  of  Vienna  of  August  23,  1866, 
between  Austria  and  Prussia  (art.  5);  but  that  provision  was  modified  by  the 
convention  of  October  11,  1878. 

The  clause  most  in  conformity  with  rational  principles  is  that  of  the  treaty 
of  August  10,  1877,  between  Sweden  and  France  for  the  retrocession  of  the 
island  of  Saint-Barth61emy,  which  reads  as  follows:  "His  Majesty  the  king  of 
Sweden  and  Norway  recedes  the  island  of  Saint-Bartholomew  to  France  and 
consequently  renounces  for  himself  and  all  his  descendants  and  successors 
the  rights  and  titles  over  the  said  colony.  This  retrocession  is  made  w^h  the 
express  reservation  of  the  assent  of  the  people  of  Saint  Bartholomew." 

The  treaty  of  peace  signed  at  Versailles  February  24,  1871,  stipulates  in 
article  I:  "France  renounces  in  favor  of  the  German  Empire  all  her  rights  over 
the  territories  situated  to  the  east  of  the  boundary  hereafter  designated.  .  .  ." 

"The  German  Empire  shall  possess  these  territories  in  perpetuity  in  full 
sovereignty  and  dominion." 

149.  It  is  incumbent,  however,  on  the  contracting  parties  to 
allow  every  one  full  liberty  to  retain  his  citizenship  in  the  ceding 
state  or  to  acquire  that  of  the  transferee,  by  giving  substantial 
guaranties  for  the  free  and  spontaneous  exercise  of  that  right. 

In  the  treaty  of  May  30,  1814  (art.  17),  a  term  of  six  years  was  given  to 
the  inhabitants  to  dispose  of  their  property  and  to  withdraw  to  the  country  of 
their  choice. 

The  right  of  election  of  nationality  has  been  admitted  in  favor  of  the  in- 
habitants of,  and  persons  born  in,  the  ceded  territories;  but  it  has  not  always 
been  clothed  with  sufficient  guaranties  for  insuring  its  free  exercise.  See 
treaty  of  Paris  of  1856,  art.  21;  of  Zurich,  November  10,  1859,  art.  12;  of 
Turin,  March  24,  1860,  art.  6.  Compare  the  critical  observations  of  the  con- 
ditions established  for  the  exercise  of  that  right  in  Fiore,  Diritto  internazionale 
privalo,  4th  ed.,  v.  I,  §§  386  et  seq. 

150.  Cession  and  annexation  are  considered  complete  from  the 
day  the  transferee  takes  possession  of  the  ceded  territory. 

So  long  as  the  cession  has  not  become  effective  by  means  of 
actual  occupation,  it  cannot  be  said  that  the  territorial  government 
is,  by  virtue  of  the  treaty,  established  in  the  ceded  territory  with 
all  the  rights  attaching  thereto. 

The  transferee  can  only  demand  that  the  treaty  of  cession  be 
fully  executed. 

The  signing  of  the  treaty  cannot  be  deemed  sufficient  to  make  the  cession 
complete,  with  all  the  consequences  that  may  arise  therefrom.  If,  by  virtue 
of  the  laws  of  the  ceding  state  or  those  of  the  transferee,  exchanges  or  changes 
in  territorial  possessions  had  necessarily  to  be  approved  by  the  legislative 


CESSION    OF    TERRITORY    AND   ANNEXATION  130 

bodies,  as  is  the  case  for  example  under  the  terms  of  article  5  of  the  Italian 
law,  every  consequence  arising  out  of  the  treaty  of  cession  would  necessarily 
have  to  be  subject  to  the  approval  of  Parliament. 


EFFECTS   OF   CESSION  AND  ANNEXATION 

151.  The  cession  of  a  portion  of  territory  to  the  state  annexing 
it  does  not  modify  either  the  personahty  of  the  transferor  or 
transferee  but  only  the  exercise  of  their  respective  rights  of  sover- 
eignty. 

152.  As  soon  as  the  cession  becomes  effective,  it  implies  on  the 
part  of  the  ceding  state  the  renunciation  of  the  exercise  of  every 
right  of  sovereignty  over  the  ceded  territory  and  its  inhabitants. 

Usually,  formal  renunciation  of  all  sovereign  rights  is  specially  stipulated. 
In  the  treaty  of  Vienna  of  June  9,  1815,  the  following  clause  was  invariably 
inserted  in  the  case  of  all  the  cessions  subscribed  to:  "renounces  in  perpetuity, 
for  himself  and  his  heirs  and  successors,  all  rights  over  the  said  provinces,  etc., 
in  favor  of  His  Majesty.  .  .  ." 

153.  After  the  annexation  of  the  ceded  territory  is  accomplished 
by  the  transferee,  the  public  and  constitutional  law  of  that  state 
must  be  considered  as  extending  to  the  annexed  territory  without 
further  declaration. 

Compare  Court  of  Turin,  24  Messidor  year  XIII,  Journ.  du  Palais  and  note; 
Cass,  frangaise,  July  6,  1833,  Sirey,  1834,  I,  338. 

Taking  possession  by  the  transferee  must  be  considered  as  accomplished 
without  any  further  formality  when  the  treaty  is  executed  and  when  that 
state  has,  in  any  manner  whatever,  actually  exercised  its  rights  over  the 
ceded  territory.  Ordinarily,  certain  formalities  which  have  to  be  observed  by 
the  two  contracting  parties  to  make  the  act  valid,  are  indicated  in  the  treaty. 
The  publication  of  the  treaty  or  a  manifesto  or  proclamation  addressed  to  the 
inhabitants  of  the  ceded  territory  is  always  considered  indispensable. 

154.  International  treaties  and  every  right  of  the  state  with 
regard  to  its  territorial  possessions  must  be  considered  as  extend- 
ing fully  to  the  annexed  territory. 

On  the  other  hand,  international  treaties  concluded  by  the 
ceding  state  cease  to  be  applicable  to  it.  In  like  manner  the  exer- 
cise of  every  international  right  by  the  former  sovereign  ceases 
ipso  jure  ipsorpie  fnclo  with  regard  to  the  ceded  territories,  unless 
the  treaty  of  cession  otherwise  provides. 

The  Court  of  Aix  sanctioned  the  first  part  of  our  rule  in  its  decision  of 
November  8,  187.5  (Sirey,  1870,  II,  134). 


140  INTERNATIONAL   LAW   CODIFIED 

German  courts  have  held  that  the  Franco-Swiss  convention  of  June  15, 
1869,  could  not  be  considered  in  force  in  Alsace-Lorraine.  Court  of  Miilhausen, 
October  31,  1885,  and  superior  court  of  Colmar,  April  2,  1886.  (Joum.  des 
Trib.  de  Lausanne,  June  25,  1886.) 

155.  With  regard  to  third  powers,  the  foregoing  rule,  so  far  as 
the  binding  force  of  treaties  is  concerned,  must  be  subject  to  their 
previous  recognition  of  the  cession. 

Nevertheless,  the  respective  rights  belonging  to  the  transferor 
and  transferee  states  over  their  respective  territorial  possessions 
cannot  be  disputed,  even  as  regards  the  consequences  of  these 
rights  in  the  international  relations  of  the  states. 

The  first  part  of  this  rule  is  based  on  the  just  idea  that  the  cession  agreed 
upon  between  two  or  more  states  pursuant  to  a  treaty  which  is  valid  in  the 
relations  of  the  parties  without  recognition  of  third  powers,  may,  however, 
be  considered  by  such  powers  as  res  inter  alios  acta,  in  so  far  as  the  said  cession 
may  violate  rights  acquired  under  treaties  concluded  with  the  ceding  state 
with  respect  to  the  ceded  territory.  Accordingly,  it  must  be  admitted  that 
third  powers,  although  not  qualified  to  validate  the  cession  or  to  subordinate 
its  effectiveness  as  between  the  parties  to  their  own  previous  recognition, 
may,  however,  safeguard  their  rights  acquired  over  the  ceded  territory  bj' 
subordinating  their  recognition  of  the  new  state  of  affairs  to  the  condition  of 
obtaining  recognition  for  these  rights  by  the  transferee.  Let  us  suppose,  for 
instance,  that  a  state  has  acquired  by  treaty  certain  commercial  privileges  in 
the  ports  of  the  ceded  territory,  or  the  right  to  coastwise  trade,  or  of  fishing 
within  territorial  waters.  It  could  not  reasonably  be  maintained  that  such 
state  ought  to  be  deprived  of  these  contractual  rights.  (Compare  the  last 
part  of  the  note  to  rule  143.) 

The  second  part  of  the  rule  is  based  upon  the  general  idea  that  in  interna- 
tional relations,  territorial  sovereignty  must  always  be  conceded  to  the  de 
facto  sovereign. 

156.  The  effects  flowing  from  the  cession  with  particular  re- 
gard to  the  obligations  contracted  by  the  ceding  government  with 
respect  to  the  ceded  territory,  the  enjoyment  of  property  rights  in 
the  public  domain,  the  rights  acquired  by  public  officers,  the  fulfil- 
ment of  obligations  toward  private  individuals  and  contribution 
to  the  payment  of  the  public  debt,  must  as  a  rule  be  regulated 
by  the  treaty  of  cession, 

157.  For  all  matters  not  regulated  by  express  stipulation, 
the  transferee  must  be  deemed  to  assume  the  position  of  uni- 
versal successor  with  regard  to  rights  and  obligations  connected 
with  the  exercise  of  public  power  or  arising  out  of  contracts 
executed  by  the  government  of  the  ceding  state,  on  grounds 
of  public  utility,  with  respect  to  the  ceded  territory. 


CESSION   OF   TERRITORY    AND   ANNEXATION  141 

The  principles  governing  universal  succession  according  to  the  civil  law 
may  be  applied  by  analogy  to  the  case  of  state  succession,  with  proper  reserva- 
tions. 

On  principle,  it  must  be  admitted  that  the  territory  with  all  its  accessories 
and  with  everything  belonging  to  the  public  domain,  passes  to  the  transferee, 
who  is  entitled  to  enjoy  all  the  advantages  connected  with  the  territorial  pos- 
sessions acquired,  without  having  to  pay  any  compensation  to  the  ceding  state 
except  as  expressly  stipulated.  Thus,  if  there  existed  in  the  ceded  territory  a 
public  institution  or  a  charitable  organization  for  the  benefit  of  all  the  in- 
habitants of  the  ceding  state,  and  if  no  indemnity  had  been  demanded  to 
provide  for  the  burdens  thus  imposed  on  the  ceding  state,  which  would  have 
to  undertake  new  expenditures  to  provide  for  the  needs  of  its  citizens,  no  in- 
demnity could  be  claimed  in  the  absence  of  express  stipulation. 

Compare,  Court  of  Cassation  of  Palermo,  January  7,  1868  {Gazelta  dei  Tri- 
bunali,  1868,  257)  and  January  15,  1871  {Giurisprudenza,  v.  VIII,  616).  See 
article  8  of  the  treaty  of  peace  between  Austria  and  Italy  of  October  3, 
1866. 

As  regards  debts,  it  must  be  said  that  the  personality  of  the  ceding  state 
remains  complete  notwithstanding  the  cession  of  a  part  of  its  territory.  Hence 
it  follows  that  it  must  remain  responsible  for  the  obligations  it  has  contracted, 
although  originally  connected  with  the  ceded  territory,  whenever  by  reason 
of  their  nature  and  object  they  are  considered  as  property  (real)  obligations  in 
the  interest  of  the  ceding  state.  Thus,  for  instance,  the  obligations  assumed  for 
works  of  defense  built  by  the  ceding  state  on  the  ceded  territory  and  the  in- 
demnities due  by  it  to  private  individuals  could  not  be  charged  to  the  trans- 
feree unless  expressly  stipulated  in  the  treaty.  Inasmuch  as  the  personality 
of  tlie  ceding  state  remains  intact  and  complete,  the  obligations  incidental  to 
the  general  interests  of  that  state,  even  though  they  may  be  the  consequence 
of  acts  connected  with  the  ceded  territory,  could  not  be  charged  to  the  trans- 
feree. 

On  the  other  hand,  obligations  assumed  by  the  ceding  state  for  an  object 
of  public  utility  relating  to  the  ceded  territory,  must  naturally  pass  to  the 
transferee,  as  a  debt  assumed  by  a  successor.  This  would  be  the  case  when, 
by  reason  of  the  erection  of  a  public  building  on  the  ceded  territory,  which 
naturally  would  pass  with  the  territory  to  the  transferee,  the  ceding  state 
may  have  concluded  a  building  contract  or  proceeded  to  expropriate  private 
property  for  which  it  would  have  to  pay  compensation. 

The  treaty  of  Vienna  of  October  3,  1866,  sanctions  this  rule  expressly  in 
article  8,  which  reads:  "The  government  of  His  Majesty,  the  King  of  Italy, 
succeeds  to  the  rights  and  obligations  arising  out  of  contracts  regularly  con- 
cluded by  the  Austrian  government  for  objects  of  public  interest  especially 
concerning  the  ceded  country."  See  the  same  clause  in  the  treaty  of  Vienna 
of  October  30,  1864,  between  Austria,  Prussia  and  Denmark,  art.  17. 

Compare  Fiore,  Dirilto  inlernazionale  pubblico,  4th  ed.,  v.  I,  §§  129  el  seq.; 
Phillimore,  Intern,  law,  v.  I,  §  137;  Bluntschli,  Droit  intern.  codijU,  §§  66-67; 
Field,  International  code,  art.  24;  Fusinato,  in  Enciclopedia  giuridica  ilaliana, 
V°,  Annessione. 

158.  It  is  incumbont  on  the  transferee  to  assume  the  pajaiient 
of  a  part  of  t  ho  pul)hc  debt  in  proportion  to  the  importance  of  the 
ceded  territory. 


142  INTERNATIONAL  LAW   CODIFIED 

Moreover,  it  should  assume  the  exclusive  burden  of  the  debts 
contracted  in  the  public  interest  of  the  ceded  territory. 

See  the  treaty  of  Zurich  of  November  10,  1859,  between  Austria,  France 
and  Sardinia,  art.  5;  the  treaty  of  Vienna  of  October  30,  1864,  between  Austria, 
Prussia  and  Denmark,  art.  17;  the  treaty  of  Berhn  of  July  13,  1878,  articles  9, 
33  and  42. 

The  second  part  of  this  rule  ought  to  be  applied  especially  when  the  ceding 
state  has  contracted  a  loan  to  erect  a  building  on  the  ceded  territory.  It  ought 
to  be  applied  with  still  more  reason  when  the  loan  was  for  the  building  of  a 
railroad  across  such  territory. 

159.  The  transferee  is  bound  to  respect  the  rights  acquired  by 
individuals  in  the  ceded  territory,  and  also  those  acquired  by  public 
officers  in  virtue  of  the  exercise  of  their  functions  in  the  ceded 
territory. 

This  rule  is  apphcable  to  the  rights  that  may  be  acquired  according  to  the 
principles  of  common  law,  but  is  not  applicable  either  to  prospective  rights  or 
to  privileges  based  on  misuse  or  on  the  implied  consent  of  the  ceding  state. 
As  regards  the  rights  acquired  by  public  officers  exercising  their  functions  on 
the  ceded  territory,  their  case  is  usually  provided  for  in  the  treaties  of  cession. 
There  is  such  a  provision  in  the  treaty  of  Vienna  of  October  3,  1866,  article  17: 
"Pensions,  military  as  well  as  civil,  regularly  liquidated,  which  were  in  the 
custody  of  the  public  treasury  of  the  Lombard-Venetian  Kingdom,  shall 
continue  to  be  payable  to  the  incumbents  and  if  need  be,  to  their  widows  and 
children,  and  shall  be  paid  from  now  on  by  the  government  of  His  Itahan 
Majesty." 

Nevertheless,  even  when  the  treaty  is  silent,  it  is  always  considered  in  con- 
formity with  the  principles  of  justice  to  take  account  of  the  rights  acquired 
by  public  officers  and  to  have  the  transferee  pay  them  their  pensions  when  the 
said  officers  have  exercised  their  duties  in  the  ceded  territory. 

160.  The  liabilities  included  in  the  budget  of  the  ceding  state 
shall  be  justly  divided  so  that  a  part  will  be  assigned  to  the  suc- 
cessor, taking  into  account  the  intention  and  object  of  such 
assignment  and  taking  as  a  basis  of  the  apportionment  the  eco- 
nomic importance  and  the  amount  of  taxes  of  the  ceded  territory. 

The  expenses  of  the  ceding  state  to  provide  for  the  exigencies  of  public 
service  and  administration  must  continue  to  be  borne,  because  the  cession 
has  not  modified  its  personality.  It  must  be  considered,  however,  that  the 
assets  of  the  ceding  state's  budget  undergo  a  diminution  in  proportion  to  the 
importance  of  the  ceded  territory.  It  is  therefore  fair,  if  not  just,  that  the 
succeeding  state  bear  a  part  of  the  financial  obligations. 

At  the  time  of  the  cession  of  Alsace-Lorraine,  it  was  stipulated  in  the 
additional  convention  of  December  11,  1871:  "The  German  Empire  recog- 
nizes and  holds  itself  responsible  for  the  civil  and  ecclesiastical  pensions  regu- 
larly obtaining  and  liquidated  on  the  2d  of  March,  1871  (date  of  ratification 
of  the  preliminaries  of  peace)  in  the  name  either  of  individuals  born  in  the 


CESSION   OF  TERRITORY  AND   ANNEXATION  143 

ceded  territories  or  of  their  widows  and  orphans,  provided  that  the  persons  en- 
joying such  pensions  reside  in  the  territory  of  the  German  Empire." 

161.  When  the  treaty  does  not  provide  for  it,  the  difficulties 
relating  to  the  just  apportionment  of  the  public  debt  between  the 
transferor  and  transferee  and  those  relating  to  the  execution  of  the 
clauses  of  the  treaty  on  this  matter  must  be  referred  to  a  mixed 
commission,  observing  the  rules  of  procedure  used  in  case  of  arbi- 
tration. 

Concerning  the  difficulties  which  may  arise  from  cession  or  annexation,  see: 
Selosse,  Traile  de  V annexion  au  territoire  franQais  ou  de  son  dememhrement,  ISSO; 
Cabonat,  Des  annexions  de  terriloire  et  de  leurs  principales  consequences,  1881; 
Appleton,  Des  effets  des  annexions  de  lerritoires  sur  les  dettes  de  I  Etal  dememhre 
ou  annexe,  1895;  Katibian,  Conseqicences  juridiques  des  trarisformations  ter- 
ritoriales  des  Flats  sur  les  traites;  Fusinato,  Cessione,  Annessione  e  loro  effelti 
giuridici,  in  V Enciclopedia  ilaliana,  1890;  Corsi,  Trasmissione  degli  obblighi 
patrinioniali  degli  stali  in  caso  di  mutazioni  territoriali,  1895;  Calvo,  Droit 
intern.,  v.  I,  §§263-298;  Bonfils,  Droit  intern.,  §§214  et  seq.;  Pradier-Fod^r6, 
Droit  intern,  v.  II,  §§  781,  849;  Chretien,  Droit  intern.,  §§  135-139;  Despagnet, 
Droit  intern.,  §  96;  Oppenheim,  International  law,  I,  2d  ed.,  pp.  285-291. 

ADMINISTRATION   AND   JUSTICE 

162.  The  transferee  state  must  have  the  power  to  provide  in 
complete  independence  for  the  administration  of  the  annexed 
countries  and  the  position  of  administrative  officers. 

Nevertheless,  it  is  incumbent  on  the  state  to  exercise  this  power 
with  moderation  and  to  regulate  the  status  of  administrative 
officers  with  justice. 

In  the  treaty  of  Vienna  of  1866,  this  point  is  regulated  in  article  15  as 
follows:  "Civil  employees  born  in  the  Lombard- Venetian  Kingdom,  shall  have 
the  right  to  choose  either  to  remain  in  the  service  of  Austria  or  to  enter  the 
Italian  service,  in  which  case  His  Majesty  the  King  of  Italy  undertakes  to  give 
them  offices  similar  to  those  they  enjoyed,  or  to  grant  them  a  pension  the 
amount  of  which  shall  be  determined  by  the  laws  and  regulations  in  force  in 
Austria." 

The  Italian  government  has  regulated  the  status  of  civil  employees  as 
follows,  by  the  decree  of  July  19,  1866:  "Without  prejudice  to  special  meas- 
ures, all  the  employees  in  the  Venetian  provinces  are,  until  further  orders, 
confirmed  in  their  offices  with  the  salary  attached  thereto,  except  those  who 
may  have  followed  the  Austrian  army  or  have  left  their  homes  at  the  approach 
of  the  national  army,  these  being  considered  as  having  resigned." 

163.  Justice  shall  be  administered  and  decisions  executed  in 
the  ceded  territory  in  the  name  of  the  transferee  or  successor 
state. 


144  INTERNATIONAL  LAW  CODIFIED 

Pending  cases  shall  be  governed  by  the  law  of  procedure  in  force 
in  the  successor  state,  except  in  the  case  of  rights  acquired  by  the 
contending  parties  under  proceedings  which  took  place  before 
the  cession. 

164.  As  regards  decisions  in  civil  and  criminal  cases  rendered 
before  the  cession,  which  have  not  yet  acquired  the  authority  of 
final  judgments,  the  principles  of  transitory  law  governing  judg- 
ments and  jurisdictions  when  a  new  law  is  substituted  for  an  old 
one  shall  be  applied. 

The  two  foregoing  rules  are  the  legitimate  results  of  the  principle  that  the 
cession  implies  the  substitution  of  one  government  for  the  other  and  that,  in 
all  matters  relating  to  public  law  (in  which  are  included  police  and  penal  laws 
and  those  relating  to  actions,  jurisdiction  and  procedure),  the  legislature  of 
the  transferee  state  comes  into  power  from  the  time  the  cession  takes  effect, 
excepting  in  the  case  of  previously  acquired  rights.  The  law  of  the  successor 
state,  therefore,  so  far  as  the  ceded  territory  is  concerned,  possesses  the  same 
authority  as  any  new  law.  It  is,  therefore,  natural,  as  regards  all  the  effects 
that  the  new  law  may  have  on  legal  relations  derived  from  actions  and  pro- 
ceedings commenced  and  terminated  before  the  cession,  that  the  rules  of  transi- 
tory law  governing  the  consequences  of  the  taking  effect  of  any  new  law  must 
be  applied. 


TITLE  VI 

RECOGNITION  OF  THE  STATE 

GENERAL  RULES 

166.  Recognition  of  a  state  is  the  solemn  act  necessary  to  es- 
tablish diplomatic  relations  between  states  as  well  as  the  recipro- 
cal enjoyment  and  exercise  of  international  rights. 

166.  While  a  state  may  exist  as  such  according  to  its  constitu- 
tional law,  if  it  desires  in  its  relations  with  other  states  to  exercise 
fully  the  international  rights  to  which  it  is  entitled  and  to  request 
the  recognition  of  its  international  privileges  and  powers,  it  must 
first  be  recognized  by  the  other  state  or  states. 

WHEN   IS   RECOGNITION   NECESSARY 

167.  Recognition  is  necessary  when  a  new  state  is  formed, 
either  by  forced  or  conventional  separation  of  a  part  of  the  old 
state,  by  the  emancipation  of  states  subject  as  vassals  to  a  suze- 
rain, by  the  liberation  of  a  colony  from  the  mother  country,  or  by 
the  union  of  several  states  into  one. 

Recognition  may  be  desirable  when  a  new  territory  is  added  to 
a  new  state  and  when  it  is  intended  that  it  should  be  recognized 
as  an  integral  part  of  the  territory  of  such  state,  or  when  some 
change  in  the  political  constitution  of  a  state  has  taken  place. 

There  are,  in  our  times,  numerous  instances  of  such  an  occurrence:  Belgium 
wa.s  formed  into  an  autonomous  state  as  a  result  of  its  separation  from  the 
Netherlands;  Greece,  Montenegro,  Servia  and  Rumania,  as  a  result  of  their 
emancipation  from  the  vassalage  of  Turkey;  the  American  republics,  as  a 
result  of  their  colonial  liberation  from  Great  Britain,  Spain  and  Portugal; 
and  the  Kingdom  of  Italy,  formed  by  the  union  of  the  Italian  states,  etc. 

168.  A  state  does  not  need  to  be  recognized  as  soon  as  it  is 
politically  constituted  in  order  to  be  considered  a  person,  even  in 
its  international  relations,  nor  in  order  to  be  held  capable  of  en- 

145 


146  INTERNATIONAL   LAW    CODIFIED 

joying  the  international  rights  which  it  possesses  as  a  state.  Yet, 
the  admittance  of  the  new  state  into  international  society  and  the 
normal  and  effective  exercise  of  all  its  international  rights  must  be 
considered  as  conditioned  upon  its  entrance  into  relations  with 
other  states,  which  occurs  when  each  of  these  powers  recognizes  it. 

To  decide  whether  a  new  state  is  or  is  not  politically  constituted  and  to 
estimate  the  genuineness  of  the  motives  which  may  have  inspired  its  formation 
is  a  question  of  constitutional  law.  The  existence  of  a  state  depends  wholly 
on  the  will  of  the  people  who  intended  to  form  the  state.  The  legality  of  the 
means  is  a  question  of  constitutional  and  not  international  law.  Granted  the 
existence  of  a  new  state,  the  international  question  to  be  solved  with  regard 
to  it  is  the  decision  as  to  whether  or  not  it  should  be  admitted  as  a  member  of 
international  society  with  all  the  privileges  which  according  to  international 
law  belong  to  every  state  effectively  constituted.  Third  powers,  therefore, 
are  merely  called  upon  to  decide  whether  the  political  personality  of  the  new 
political  organism  is  such  as  to  guarantee  the  exercise  and  the  fulfillment  of 
international  rights  and  duties.    Such  is  the  purpose  of  recognition. 

NATURE   OF  RECOGNITION 

169.  Recognition  is  in  its  nature  a  political  act.  It  is  the  privi- 
lege of  every  government  to  determine  with  perfect  freedom  and 
independence  whether  conditions  render  desirable  or  opportune 
the  recognition  of  a  new  state,  and  it  need  not  account  for  its 
decision  to  other  governments  which  may  consider  its  recognition 
as  untimely  or  tardy. 

Great  Britain  recognized  the  constitution  of  the  new  government  at  Naples 
in  1860  while  King  Francis  II  was  still  at  Gaete  and  still  hoped  to  defend  his 
crown  with  the  aid  of  the  mihtary  forces  at  his  disposal.  The  United  States, 
on  the  contrary,  refused  to  recognize  the  independence  of  Hungary  in  1849. 
Great  Britain  delayed  until  1782  the  recognition  of  the  United  States,  which 
France  had  recognized  in  1778.  The  states  of  South  America  were  recognized 
by  Great  Britain  in  1825,  while  Spain  did  not  do  so  until  much  later,  although 
these  states  had  been  in  existence  since  1810  as  a  result  of  their  independence 
from  Spanish  control.    (See  Calvo,  v.  I,  §  94.) 

170.  Recognition  may  be  considered  in  good  faith  when  it  takes 
place  after  the  new  political  organism  has  acquired  a  certain 
strength,  that  is  to  say,  when  it  has  at  its  command  the  power  and 
the  necessary  means  for  exercising  the  rights  and  privileges  of  the 
state,  preserving  order,  administering  justice  and  assuming  re- 
sponsibility for  its  own  acts. 

171.  Recognition  of  a  new  state  may  be  considered  in  bad  faith 
if  it  takes  place  during  the  course  of  hostilities  between  the  older 


RECOGNITION   OF   THE   STATE  147 

government  which  seeks  by  force  to  restore  the  old  state  of  affairs, 
and  the  actually  victorious  party  which,  though  it  has  succeeded 
in  establishing  a  government,  does  not  yet  show  sufficient  stability. 

When  France  recognized  the  independence  of  the  United  States  by  conckid- 
ing  with  it  the  treaty  of  commerce  of  February  6,  1778,  when  its  struggle  with 
the  mother  country  had  not  yet  ended,  Great  Britain  considered  this  untimely 
recognition  as  a  hostile  act  and  recalled  its  ambassador. 

VALUE  OF  RECOGNITION 

172.  Recognition  must  be  limited  to  what  appears  de  facto, 
and  can  never  have  the  effect  of  an  approval  of  the  means  used  to 
secure  the  triumph  of  the  new  government  nor  constitute  a  dec- 
laration of  the  lawfulness  of  these  means  or  of  the  legitimacy  of 
the  new  order  of  things. 

The  legality  of  the  means  used  for  the  political  constitution  of  a  new  state 
is  a  matter  mainly  of  constitutional  law.  No  new  state  can  be  formed  either 
by  separation  or  emancipation,  without  violent  means,  without  revolution, 
without  desperate  struggle;  but  all  that  is  in  the  realm  of  history.  In  inter- 
national law.  states  must  be  considered  as  they  have  actually  been  constituted 
as  a  consequence  of  political  events.  Every  political  organism  having  a 
political  personality  of  its  own,  a  government  estabhshed  by  the  will  of  the 
people,  provided  with  suflBcient  means  to  operate  as  a  regular  government, 
and  which  gives  sufficient  proof  of  its  stability  and  fitness  to  exercise  its  own 
rights  in  international  society  and  to  assume  responsibility  for  its  acts,  may 
be  recognized  without  the  necessity  of  having  to  consider  the  means  resorted 
to  in  the  formation  of  the  new  state. 

173.  Recognition  of  a  new  state  cannot  be  regarded  as  a  hostile 
act  toward  the  country  of  which  it  was  formerly  a  part,  and  cannot 
be  considered  as  a  just  ground  for  complaint,  except  in  cases  where, 
owing  to  special  circumstances,  such  recognition  might  be  tanta- 
mount to  moral  assistance  given  to  the  new  state. 

174.  The  unjustifiable  refusal  to  recognize  as  an  autonomous 
and  independent  state  one  constituted  de  facto,  must  be  considered 
as  contrary  to  international  law  and  may  justify  acts  of  retorsion. 

It  should  be  considered  as  good  policy  not  to  postpone  the  recognition  of  a 
state  which  has  in  fact  become  independent.  No  attention  need  be  paid  the 
old  government  which  may  make  every  effort  to  prevent  tiiird  parties  from 
recognizing  the  new  state  and  to  restore  its  own  complete  sovereignty.  A 
tardy  refusal,  therefore,  may  no  doubt  justify  acts  of  retorsion. 

At  the  time  of  the  formation  of  the  Italian  Kingdom,  certain  states  of 
Germany  having  persisted  in  their  refusal  of  recognition.  Count  Cavour  with- 
drew the  exequatur  from  the  consuls  of  those  states  on  Sardinian  territory, 
which  act  of  retorsion  brought  about  the  desired  result. 


148  INTERNATIONAL  LAW   CODIFIED 

175.  The  recognition  of  a  new  state  by  a  congress  should  be 
considered  as  final  in  granting  the  effective  enjoyment  of  interna- 
tional rights  to  such  a  state,  not  only  as  regards  the  powers  as- 
sembled in  Congress  and  those  which  have  adhered  to  its  decisions, 
but  also  to  legalize  the  new  order  of  things  with  regard  to  the  state 
whose  interest  it  may  be  not  to  extend  recognition. 

The  final  separation  of  Belgium  from  Holland  was  recognized  by  the  hve 
great  powers  under  the  terms  of  the  treaty  of  London  of  January  26,  1831. 
The  independence  of  Greece  was  recognized  at  the  Conference  of  Constanti- 
nople of  1832;  that  of  the  new  states  of  Rumania,  Servia  and  Montenegro,  at 
the  Congress  of  Beriin,  1878.  The  new  state  of  Congo  was  recognized  at  the 
Conference  of  Berlin,  1885. 

176.  A  state  whose  rights  are  impaired  by  the  formation  of  a 
new  state  cannot  refuse  for  an  indefinite  period  to  recognize  the 
new  conditions. 

Recognition  on  its  part  should  be  considered  as  effecting  a  final 
renunciation  of  any  design  to  restore  the  old  conditions. 

It  is  but  natural  for  the  injured  state  to  decide  slowly  upon  recognition  of 
the  new  conditions.  Not  until  September  24, 1782,  did  Great  Britain  recognize 
the  independence  of  the  United  States,  established  in  1776.  Spain  decided 
still  more  slowly  to  recognize  as  states  its  former  American  colonies,  the  inde- 
pendence of  which  dated  back  to  1810.  It  recognized  Chile  in  1844,  Venezuela 
in  1846  and  Nicaragua  in  18.50.  Undoubtedly,  recognition  by  the  injured 
state  must  be  considered  as  most  important  in  demonstrating  its  final  ac- 
quiescence and  consequently  the  end  of  any  contest.  But  no  time  can  be 
fixed  to  compel  that  state  to  effect  its  recognition.  Economic,  commercial 
and  political  interests  are  always  the  most  efficacious  motives,  and  it  behooves 
the  old  state  to  bear  them  in  mind. 

RECOGNITION  OF  CONSTITUTIONAL  CHANGES 

177.  Recognition  in  the  event  of  a  change  in  the  political  con- 
stitution of  a  state  may  be  required  in  order  to  maintain  diplomatic 
relations  with  the  new  government  of  that  state. 

178.  The  government  of  every  state  has  the  right  to  maintain 
or  to  suspend  its  relations  with  a  new  government  established  in 
accordance  with  the  new  political  constitution,  and  may  exercise 
the  right  freely. 

179.  It  is  good  policy  to  consider  the  form  of  government  as 
of  no  import  to  international  society.  A  sovereign  may,  however, 
refuse  to  recognize  a  nev/  government  which  proclaims  principles 
subversive  and  contrary  to  the  fundamental  laws  of  international 


RECOGNITION    OF    THE    STATE  149 

-society,  or  which  impairs,  in  one  way  or  another,  the  authority 
of  the  principles  of  common  law  indispensable  for  the  preservation 
of  the  legal  community  among  the  states. 

FORM    OF    RECOGNITION 

180.  No  particular  formality  is  required  to  recognize  a  new  state 
or  government.  The  fact  of  establishing  diplomatic  relations  with 
it  is  equivalent  to  a  formal  recognition. 

The  formal  recognition  of  a  new  state  or  government  may  take  place  in 
different  ways.  The  appointment  of  consular  agents,  the  conclusion  of  an 
international  convention,  the  admission  of  a  new  state  as  such  to  the  provi- 
sions of  a  treaty  with  other  states,  and  other  similar  acts  of  a  nature  proving 
the  establishment  of  diplomatic  relations  may  be  equivalent  to  a  formal  act 
of  recognition. 

EXERCISE    OF    ITS    RIGHTS   BY   A    STATE   NOT   RECOGNIZED 

181.  Every  state  may  freely  exercise  its  rights  of  sovereignty 
within  its  own  territory  independently  of  recognition,  and  foreign 
officials  and  courts  cannot  ignore  the  entirely  legal  authority  of 
the  sovereign  acts  thus  undertaken. 

Since  a  constituted  authority  must  be  considered  as  invested  with  all  rights 
of  sovereignty  as  soon  as  the  people  have  established  or  accepted  a  government 
which  exercises  de  facto  all  sovereign  powers,  it  follows  that  the  exercise  of 
those  rights  must  be  given  effect  in  foreign  countries  independently  of  recog- 
nition. 

The  Supreme  Court  of  the  United  States  declared  in  1808  that  the  sovereign 
rights  of  the  United  States  were  to  be  considered  as  complete  from  the  day 
of  the  declaration  of  their  independence,  that  is  to  say,  from  the  4th  of  July, 
1776,  independently  of  their  recognition  by  Great  Britain  in  the  treaty  of  1782. 

The  Court  of  Cassation  of  Turin  has  held  with  reason  that  a  private  person 
who  has  paid  to  the  old  government  annuities  due  to  the  territorial  sovereign, 
cannot  be  e.xempted  on  the  ground  of  lack  of  recognition  of  the  new  govern- 
ment and  of  his  good  faith.  The  rights  of  sovereignty,  said  the  court,  belong 
in  effect,  in  their  entirety,  to  the  de  facto  government.  {Cass.  Turin,  July  1, 
1869,  Giurisprudenza,  1869,  526.) 

182.  The  acts  of  government  of  a  new  state,  so  far  as  their 
operative  effect  in  international  relations  is  concerned,  may  be 
deemed  as  of  no  value  in  a  state  which  has  not  recognized  it. 
Consequently,  the  courts  and  political  authorities  of  the  latter 
country  may  consider  the  former  conditions  as  still  existing,  until 
their  govermnent  recognizes  the  new  state. 


fl 


150  INTERNATIONAL   LAW    CODIFIED 

Although  a  state,  independently  of  its  recognition,  must  be  considered  in 
legal  possession  of  its  internal  sovereign  rights  from  the  time  it  is  politically 
constituted,  it  cannot  be  held  that  its  acts,  in  so  far  as  they  are  intended  to 
regulate  international  relations  or  be  effective  abroad,  must  be  considered 
valid,  as  regards  another  state  which  has  not  recognized  it. 

Let  us  suppose,  for  instance,  that  the  new  government  has,  by  new  laws, 
modified  public  external  law  by  changing,  say,  the  rules  relating  to  the  ex- 
tradition of  criminals  or  the  execution  of  foreign  judgments.  Let  us  suppose  it 
has,  for  instance,  declared  valid  a  decision  of  its  own  courts  which  has  annulled 
a  marriage  by  granting  a  divorce  under  application  of  its  own  law.  The  courts 
of  justice  and  authorities  of  a  foreign  country  which  had  not  recognized  the 
new  state  could  disregard  these  laws  so  far  as  their  extraterritorial  effect  is 
concerned,  and  could  indeed  consider  the  former  conditions  as  still  in  force. 
(Compare  Phillimore,  International  law,  v.  II,  chap.  IV,  §  22,  p.  33;  Calvo, 
Droit  international,  §§  99  e<  seq.) 

In  order  to  make  our  rule  clearer,  let  it  be  supposed  that  under  the  law  of 
a  given  state,  every  act  directed  against  a  foreign  ruler  is  punished  and  that 
a  newly  organized  state,  not  yet  recognized,  issues  a  loan  for  the  purpose  of 
strengthening  its  position  and  of  repelling  the  attack  of  the  dispossessed  sov- 
ereign. Let  it  furthermore  be  supposed  that  a  citizen  of  that  state,  considering 
the  government  of  the  new  state  as  legally  constituted,  lends  it  a  large  sum 
of  money,  and  the  question  arises  as  to  whether  such  an  act  comes  within  the 
criminal  law  of  his  country.  Under  such  circumstances,  the  loan,  as  a  com- 
mercial transaction,  could  not  be  considered  as  a  hostile  act  calling  for  punish- 
ment; but,  as  a  matter  of  fact,  it  could  be  regarded  as  assistance  given  to  the 
ruler  not  yet  recognized,  against  the  dispossessed  sovereign.  Therefore,  it 
must  be  admitted  that  the  courts  of  the  state  which  has  not  recognized  the 
new  state  should  take  account  of  penal  sanctions  and  deem  international 
relations  unchanged. 


TITLE  VII 

IDENTITY  AND  LOSS  OF  PERSONALITY  OF  THE 

STATE 

183.  The  personality  of  the  state  must  be  considered  as  un- 
changed and  subsisting  with  all  the  rights  and  privileges  appertain- 
ing thereto,  so  long  as  the  state  preserves  its  substantial  charac- 
teristics as  a  political  institution. 

184.  A  state  loses  its  personality  when  it  ceases  to  constitute 
an  independent  political  association. 

This  may  be  the  result  of: 

a.  Its  voluntary  incorporation  into  another  state; 

b.  The  voluntary  union  of  several  states,  forming  a  new  and  more 
important  one; 

c.  Forcible  incorporation  into  another  state,  by  conquest  or 
subjection  rendered  legal  in  conformity  with  international 
law. 


151 


TITLE  VIII 
RIGHTS  OF  LIBERTY  AND  AUTONOMY 

LIBERTY 

185.  Liberty,  a  right  possessed  by  every  state  in  its  relations 
with  other  states,  is  the  legal  power  to  act  with  independence  and 
without  external  hindrance  within  the  sphere  of  its  own  right. 

186.  Each  state  may  claim  only  the  liberty  and  independence 
compatible  with  the  respect  for  the  rights  of  the  other  states  of 
the  Magna  civitas,  all  being  subject  to  the  exigencies  of  a  well-reg- 
ulated common  existence. 

187.  Each  state,  in  its  relations  with  other  states,  must  so  exer- 
cise its  liberty  as  not  to  infringe  upon  the  rights  and  legitimate 
interests  of  the  others,  and  not  to  violate  directly  or  indirectly  the 
private  rights  of  foreigners. 

188.  Every  government,  independently  of  the  obligations  con- 
tracted by  treaties,  must,  in  exercising  its  rights,  be  considered 
bound  to  take  into  account  the  general  interests  of  international 
society  and  the  requirements  of  common  life  with  other  states. 

AUTONOMY 

189.  Autonomy  is  the  right  of  every  state  to  establish  and 
modify  its  political  constitution  and  to  exercise  freely  and  fully 
over  its  own  territory  all  the  powers  and  functions  of  sovereignty 
without  violating  international  law,  free  from  any  direct  or  indirect 
interference  by  other  states  in  all  matters  relating  to  internal 
public  law. 

190.  It  should  be  presumed,  in  principle,  that  every  state  enjoys 
complete  and  indivisible  autonomy.  The  state  may,  however,  by 
treaty,  consent  to  certain  limitations  upon  the  exercise  of  its 
sovereign  powers,  provided  that  such  limitations  be  stipulated  in 
clear,  precise  and  unequivocal  language  and  be  not  contrary  to  the 
principles  of  international  law. 

152 


RIGHTS    OF    LIBERTY    AND    AUTONOMY  153 

191.  Every  state  may,  with  full  autonomy,  provide  for  its  pres- 
ervation, well-being  and  development,  and  its  liberty  in  that  re- 
spect cannot  be  limited  by  fear  of  any  possible  danger  which 
may  arise  from  the  continued  and  progressive  increase  of  its  eco- 
nomic, intellectual  and  moral  power  attained  without  injury  to 
the  rights  of  others. 

192.  Every  government  may  provide  with  full  autonomy  for 
the  defense  of  the  state  by  organizing  its  army  and  navy,  building 
fortifications,  concluding  alliances,  and  adopting  all  necessary 
measures  to  that  end,  without  being  subjected  either  to  limitations 
or  prohibitions  of  any  kind  by  foreign  governments. 

193.  Nevertheless,  the  right  of  every  state  to  increase  its  mili- 
tary power  should  always  be  exercised  within  just  limits  estab- 
lished by  common  or  general  law,  as  will  be  explained  hereafter, 
and  should  not  be  so  extended  as  to  jeopardize  the  safety  of  third 
parties. 

This  rule  is  based  on  the  idea  of  limiting  armaments  according  to  the  rules 
to  be  laid  down  hereafter.  It  is  in  effect  inadmissible  that  a  state,  by  rea- 
son of  its  liberty,  may  without  just  reasons  increase  inordinately  its  land 
and  sea  forces  and  thus  augment  the  enormous  cost  of  armaments  by  forc- 
ing the  other  states  to  increase  their  military  forces  in  order  to  preserve 
peace. 

Exaggerated  armaments  may  always  be  considered  as  injurious  to  common 
interests  and  may  constitute  just  grounds  for  demanding  explanations,  es- 
pecially when  it  may  be  presumed  that  they  are  directed  against  a  certain 
state. 

AUTONOMY    OF   LEGISLATIVE   POWER 

194.  Every  government  may,  with  absolutely  complete  auton- 
omy, enact  and  amend  its  laws  and  subject  to  the  laws  persons, 
propert}^,  legal  acts  and  facts,  under  the  contlition,  however,  that 
it  exercise  its  power  within  its  legal  sphere  and  do  not  violate 
international  law. 

JUST   LIMITATIONS    OF   LEGISLATIVE   AUTONOMY 

195.  It  is  not  permissible,  under  the  guise  of  legislative  autonomy 
to  subject  foreigners  to  territorial  laws  which  concern  their  per- 
sonal status,  nor  to  refuse  recognition  to  the  personal  status  of 
these  foreigners,  except  where  such  non-recognition  aims  to  main- 
tain the  authority  of  the  laws  of  public  policy  or  those  protecting 
morals  or  social  order. 


154  INTERNATIONAL   LAW   CODIFIED 

196.  Any  system  of  law  which  attributes  the  character  of  a  real 
statute  to  every  provision  relating  to  real  property  and  which 
subjects  to  territorial  law  every  legal  relation  without  regard  to  its 
nature  and  the  enjoyment  of  any  right  over  real  property,  no 
matter  what  its  nature,  as  well  as  the  status  of  the  person  in  whom 
that  right  is  vested,  should  be  considered  as  contrary  to  the  ra- 
tional principles  of  private  international  law,  which  fixes  the  limits 
of  the  legislative  power  of  every  government. 

197.  The  respective  right  of  the  territorial  and  foreign  sover- 
eignty to  regulate  through  its  own  laws  the  rights  to  personal 
and  real  property;  the  acquisition  of  the  ownership  of  such  prop- 
erty; its  transfer  by  deed  or  will;  the  extrinsic  forms  of  the  instru- 
ments to  be  used  in  such  a  case;  and  the  exercise  of  any  right  re- 
lating to  property,  must  be  fixed  and  determined  by  agreement 
between  states,  which  should  lay  down  uniform  rules  as  regards  the 
legislative  power  of  every  government  and  should  determine  the 
just  limitations  upon  that  power. 

In  the  absence  of  such  an  agreement,  the  power  to  assign 
territorial  or  exterritorial  authority  to  every  law  cannot  be 
considered  as  within  the  competence  of  national  autonomy,  but 
should  be  governed  by  the  rational  principles  of  private  inter- 
national law. 

These  proposed  rules  aim  to  establish  the  rule  that,  in  principle,  the  sov- 
ereignty of  the  state  cannot  by  reason  of  its  eminent  domain  over  the  whole 
territory,  subject  to  its  own  laws  every  relation  of  private  law  concerning  real 
property,  nor  the  right  to  transfer  it  by  inheritance  or  otherwise.  It  should  be 
admitted  that  the  legislative  power  of  every  sovereignty  in  its  relations  with 
the  legislative  power  of  other  states  must  be  determined  through  rules  estab- 
lished by  treaties,  or  according  to  the  rational  principles  of  law.  Then  it  is 
for  private  international  law  to  lay  down  the  rules  designed  to  determine  the 
true  rational  limits  of  the  authority  of  every  law,  so  as  to  eliminate  all  causes  of 
conflicts  between  the  laws  of  the  different  states.  In  order  to  attain  that  end, 
we  must  refer  to  the  special  rules  which  govern  this  matter.  (See  on  this 
subject,  my  work,  SulV autoritd  e  sulVapplicazione  delle  leggi  straniere  o  Diritto 
intemazionale  privato,  v.  4.  Turin,  Unione  Tip.  Editrice,  1902,  and  the  French 
translation  by  C.  Antoine,  Paris,  A.  Pedone.) 

Compare,  Demangeat,  Introduction  to  Clunet,  Journal  du  droit  international 
priv6,  v.  I. 

AUTONOMY  IN  ITS  RELATIONS  WITH  FOREIGNERS 

198.  It  is  always  incumbent  upon  every  state  to  regulate  the 
legal  status  of  foreigners  and  all  their  rights,  so  as  to  reconcile  its 


RIGHTS    OF    LIBERTY   AND   AUTONOMY  155 

own  autonomy  with  its  respect  for  the  common  interests  and  the 
rational  principles  of  law. 

199.  It  is  a  violation  of  the  rational  principles  of  law  for  any- 
state  to  refuse  to  foreigners,  by  virtue  of  its  autonomy,  the  en- 
joyment of  their  private  or  civil  rights,  or  to  sanction  legal  repris- 
als, or  to  establish  an  essential  difference  of  legal  status  between 
citizens  and  foreigners  as  to  the  acquisition  of  private  rights, 
except  to  reserve  to  its  citizens  alone  for  reasons  of  public  policy 
the  acquisition  and  enjoyment  of  certain  defined  rights. 

The  private  rights  of  every  man,  called  civil  rights,  are  in  reality  but  the 
natural  rights  recognized  by  civil  law,  which  proclaims  them,  regulates  their 
exercise  and  insures  their  enjoyment. 

A  difference  of  legal  status  between  the  citizen  and  the  foreigner  as  regards 
the  respect  of  the  private  rights  of  the  latter  according  to  his  personal  statute 
cannot,  therefore,  in  principle,  be  justified.  Nor  can  one  any  more  justify 
the  subordination  of  the  enjoyment  of  these  rights  to  the  condition  of  reci- 
procity; for  legal  reprisals  must  be  considered  contrary  to  the  principles  of 
international  law  and  a  violation  of  the  rights  of  man,  the  respect  of  which 
may  be  claimed  by  any  one  in  international  society  according  to  the  principles 
laid  down  in  rules  67  and  6S.  [The  grievous  effects  of  the  war  on  juristic 
thought  may  be  seen  in  an  article  by  the  brilliant  French  jurist,  Fillet,  of 
the  University  of  Paris,  who  openly  advocates  discrimination  against  certain 
foreigners  after  the  war.  Yale  Law  Journal  for  June,  1917,  v.  26,  pp.  631- 
644.— Transl.] 

200.  It  is  not  permissible,  by  virtue  of  legislative  autonomy, 
to  refuse  to  foreigners  the  application  of  the  laws  in  force  in  the 
state  protecting  the  person  and  the  private  rights  of  every  one,  or 
to  establish  a  substantial  diversity  of  treatment  in  that  respect 
by  reason  of  the  mere  circumstance  of  alienage. 

The  legislatures  of  civilized  countries  have  a  tendency  at  the  present  time 
to  remove  the  difference  existing  between  citizens  and  foreigners  with  respect 
to  the  enjoyment  of  civil  rights.  A  good  example  is  furnished  by  Italy,  which 
embodied  the  principle  in  article  3  of  the  Civil  Code  and  has  assimilated  the 
foreigner  to  the  citizen  with  respect  to  the  enjoyment  of  civil  rights.  (Compare 
Laurent,  Ehoit  civ.  intern.,  v.  II,  §  38,  p.  65.)  [The  Chilean  Civil  Code,  drafted 
by  Andres  Bello,  anticipated  Italy  by  ten  years  in  this  provision. — Trans.) 
The  right  of  the  state  to  reserve  the  enjoyment  of  certain  rights  to  citizens,  for 
reasons  of  public  policy,  is  one  that  cannot  be  denied.  It  may  be  considered  as 
within  the  domain  of  legislative  autonomy.  But  no  system  of  law  can  be  estab- 
lished by  virtue  of  autonomy,  by  which  foreigners  would  be  placed  outside 
common  law  as  regards  the  acquirement  and  enjoyment  of  civil  rights,  or 
which  would  justify  all  the  excessive  measures,  called  droit  d'aubaine,  which 
used  to  oppress  foreigners  imder  the  old  law.  Nor  can  the  security  judicatum 
solvi  or  pro  expensis  imposed  on  the  foreigner  who  prosecutes  his  rights  in  the 
courts  be  justified.    This  security  is  not  only  not  required  in  Italy,  but,  fur- 


150  INTERNATIONAL   LAW   CODIFIED 

thermore,  the  legislature  (art.  8  of  the  law  of  December  6,  1865)  has  extended 
to  foreigners  the  benefit  of  the  laws  of  December  6,  1865,  and  of  July  19,  1880, 
under  which  in  certain  cases  the  free  services  of  a  lawyer  and  the  advance  cost 
of  law  suits  may  be  obtained. 

See  my  works:  Dirilto  internaziojiale  privato,  5th  ed.,  v.  I,  Preliminari, 
cap.  Ill,  Parte  speciale,  lib.  I,  cap.  I,  Torino,  1914;  DeWautorild  della  leggi 
net  suoi  rapporti  col  territorio,  v.  I,  sec.  II  of  the  work:  Delle  disposizione 
generali  suUa  pubblicazione  ed  applicazione  delle  leggi,  2d  ed.,  Napoli,  Eugenio 
Marghieri,  Torino,  Unione  Tip.-Ed.  Torinese,  1914;  Della  ciltadinanza, 
cap.  VIII,  pp.  167  et  seq.,  Napoli,  E.  Marchieri,  Torino,  Unione  Tip.-Ed. 
Torinese,  1909. 


EXERCISE   OF  THE  LEGISLATIVE  POWER  AND  ITS  JUST 

LIMITATIONS 

201.  Every  state  has  the  exclusive  power  to  determine  the 
appropriateness  of  its  laws,  the  necessity  of  modifying  them  and 
their  efficacy  to  protect  the  rights  of  private  persons  and  to  secure 
the  respect  of  international  law. 

202.  Any  interference  by  a  foreign  power  to  compel  a  state  to 
modify  its  laws  under  the  pretense  of  better  protecting  the  rights 
of  its  citizens,  should  be  considered  as  a  violation  of  the  legislative 
autonomy  inherent  in  every  state. 

203.  It  is  always  incumbent  upon  the  legislature  of  every  coun- 
try to  see  that  its  own  legislation  sufficiently  protects  the  rights 
of  private  persons  in  their  relations  among  themselves  and  with 
the  state  and  secures  the  respect  of  international  law. 

204.  It  is  not  permissible  for  a  foreign  state  to  criticize  the  legis- 
lative system  of  another  state,  or  to  request  that  it  be  modified 
under  the  pretext  of  not  being  adequate  properly  to  protect  the 
rights  of  persons.  Only  the  right  to  make  representations  in  the 
matter  may  be  deemed  proper,  leaving  it  to  the  discretion  of  the 
other  government  to  take  notice  of  the  request  submitted. 

205.  Nevertheless,  when  the  legislative  system  in  force  in  a 
state  is  considered  by  a  Congress  as  inadequate  to  protect  the 
rights  of  foreigners  or  to  secure  the  respect  of  international  law 
and  as  requiring  certain  reforms,  the  state  cannot  refuse  to  heed 
such  collective  representations.  It  must  modify  its  existing  laws 
by  remedying  their  deficiencies,  under  penalty  of  placing  itself 
without  the  law  which  ought  to  govern  international  society. 

There  are  quite  a  number  of  cases  of  collective  representation  made  by 
the  Great  Powers  assembled  in  a  Congress  to  demand  the  amelioration  of  the 


RIGHTS    OF    LIBERTY   AND    AUTONOMY  157 

logislation  of  certain  states  considered  insufficient  for  the  protection  of  the 
rights  of  persons,  or  to  impose  the  execution  of  a  promise  of  certain  legis- 
lative reforms. 

The  Congress  of  Paris  of  1856  imposed  on  Turkey  the  revision  of  the  statutes 
in  force  in  the  principahties  of  Vahichia  and  Moldavia,  and  charged  an  inter- 
national commission  to  assume  control  of  the  bases  of  the  new  organization 
of  these  principalities  and  to  make  proposals  on  the  subject  (art.  23). 

In  the  treaty  of  Berlin  of  187S,  the  Great  Powers  assembled  in  Congress 
recognized  the  independence  of  Montenegro,  Servia  and  Rumania,  under  the 
condition,  however,  that  the  public  law  in  force  in  these  states  be  based  on 
certain  rules  fixed  by  the  Great  Powers  (arts.  XXVII,  XXXVI,  XLIV). 

Under  this  same  treaty,  there  was  imposed  upon  Turkey  the  obligation  to 
carry  out  the  improvements  and  legislative  reforms  required  to  protect  the 
rights  of  the  Armenians  and  to  insure  their  security  against  the  Circassians 
(art.  LX). 

In  the  treaty  concluded  at  Constantinople  September  6-18,  1897,  between 
the  Great  Powers  and  the  Ottoman  Empire  to  fix  the  conditions  of  peace  with 
Greece,  it  was  stipulated  (art.  3)  that  the  two  contracting  parties  would  see 
to  the  removal  of  all  obstacles  likely  to  hinder  the  regular  course  of  justice; 
to  insure  the  e.xecution  of  the  judgments  rendered  by  their  respective  courts; 
and  to  protect  the  interests  of  the  Ottoman  and  foreign  citizens  in  their  dis- 
putes with  Greek  citizens,  even  in  case  of  bankruptcy. 


AUTONOMY  OF  JUDICIAL  POWER 

RULES   RELATING   TO   JURISDICTION   AND    COMPETENCE 

206.  Every  government  must  be  considered  autonomous  from 
the  point  of  view  of  the  exercise  of  its  judicial  power;  and  it  may 
fix  the  territorial  jurisdiction  and  determine  the  competence  of  its 
own  judges  with  reference  to  any  litigation  relating  to  persons, 
property,  obligations  or  any  other  matters. 

207.  Nevertheless,  no  government  may,  by  virtue  of  its  auton- 
omy, attribute  jurisdiction  to  its  courts  whenever  the  potestas 
judicandi  causam  belongs  to  a  foi'eign  government. 

When  it  assumes  a  jurisdiction  which  it  does  not  properly  pos- 
sess according  to  the  principles  of  law,  such  act  must  be  considered 
as  an  arbitrary  usurpation  of  jurisdiction  and  as  a  violation  of 
international  law. 

208.  The  rules  relating  to  the  right  of  jurisdiction  possessed  by 
this  or  that  government,  and  whose  purpose  is  to  determine  to 
which  of  these  governments  the  potesta.s  judicandi  causmn  ought 
f)n)perly  to  be;  attiil)uted  constitute  the  rules  of  jurisdiction  ac- 
coiding  lo  international  law.    They  nmst  be  fixed  by  agreement,  or 


158  INTERNATIONAL   LAW   CODIFIED 

in  the  absence  of  treaty,  deduced  from  the  general  principles  of 
law,  as  is  the  case  whenever  no  positive  rule  exists. 

It  is  desirable  to  distinguish  clearly  between  jurisdiction  and  competence 
considered  as  powers  of  the  magistrate,  which  may  be  assigned  to  the  judge 
by  the  territorial  sovereign,  and  jurisdiction  considered  as  a  right  belonging  to 
every  government  concurrently  with  other  governments  and  which  constitutes, 
properly  speaking,  the  potestas  judicandi  causam  as  a  power  of  the  state. 

The  sovereign  of  every  state  may  determine  with  absolute  autonomy  which 
of  the  jurisdictions  of  his  own  country  must  be  given  the  right  to  pass  upon 
any  particular  case,  and  which  of  the  judges  in  a  certain  jurisdiction  must  be 
held  competent  to  decide  the  case,  considering  its  nature,  importance  and 
locality.  All  these  are  matters  of  public  law  in  each  country  and  fall  under 
the  application  of  rule  206. 

The  case  is  quite  different  when  the  question  involves  jurisdiction  consid- 
ered as  a  power  of  the  state.  When  the  question  arises  of  establishing  whether 
the  potestas  judicandi  causam  belongs  to  Italy,  France  or  Germany,  it  is  no 
longer  a  question  of  public  law  which  is  involved,  to  be  determined  with  entire 
liberty  by  each  state  by  virtue  of  its  autonomy,  but  it  is  a  true  question  of 
international  law,  for  whose  solution  no  sovereign  can  impose  rules  binding 
upon  the  other  states.  Such  a  question  could  be  solved  only  by  reciprocal 
agreement.  In  the  absence  of  such  an  agreement  the  only  course  to  be  followed 
is  to  apply  the  general  principles  of  law.  Consequently,  if  the  state,  by 
reason  of  its  autonomy,  should  give  jurisdiction  to  its  judges  in  a  case  where 
the  potestas  judicandi  causam  belongs  to  a  foreign  state,  the  act  must  be  con- 
sidered as  arbitrary  and  contrary  to  international  law;  for  it  would  consti- 
tute an  unjustifiable  usurpation  of  the  jurisdiction  belonging  to  a  foreign  state. 

In  the  terms  of  article  14  of  the  French  civil  code  there  is  found  an  example 
of  jurisdiction  assigned  arbitrarily  to  the  courts  of  the  state  in  contradiction 
to  international  law.  As  for  us,  we  have  always  maintained  that  the  autonomy 
of  a  state  in  violation  of  the  rules  of  jurisdiction  according  to  international 
law  can  never  be  admitted.  See  Fiore,  Effelti  internazionali  delle  sentenza 
(Materia  civile),  cap.  Ill,  §  3,  Torino,  1875;  id.,  Note  on  the  decision  of  the 
court  of  Catania  of  March  22,  1879,  in  Foro  ilaliano,  1879,  p.  714;  id.,  Diritto 
inlernaz.  pubblico,  4th  edition,  Torino,  1904,  §§  402,  405;  id.,  Sulle  disposizioni 
generali  delle  leggi,  2d  edition,  Napoli,  Marghieri,  1908,  Torino,  Unione 
Tipografico-Editrice  Torinese,  v.  I,  §§  454-458;  id.,  Questioni  di  diritto, 
Delia  giurisdizione  e  della  competenza  nei  loro  rapporti  col  Diritto  inter nazionale, 
pp.  533-40.    Torino,  Unione  Tip.-Editrice  Torinese,  1905. 

The  principles  which  we  have  set  forth  were  admitted  for  the  first  time  in 
the  Court  of  Florence  in  its  decision  of  December  2,  1882,  in  the  case  of  Blanc  v. 
Trafford.  The  Court  says:  "The  question  to  be  decided  as  to  which  of  two 
courts  of  a  foreign  state  is  competent,  must  be  settled  in  accordance  with  the 
law  of  the  country  where  the  action  was  brought;  but  when,  on  the  contrary, 
the  courts  whose  jurisdiction  is  brought  in  question  do  not  belong  to  the  same 
state,  the  question  is  settled  in  conformity  with  the  principles  of  international 
law.    (See  Foro  italiano,  1882,  I,  p.  1148.) 

EXTRATERRITORIAL   EFFECT   OF   A    CIVIL   JUDGMENT 

209.  Every  government  may,  with  the  fullest  autonomy,  fix 
the  legal  conditions  required  to  give  to  a  foreign  judgment  the 


RIGHTS   OF    LIBERTY   AND   AUTONOMY  159 

authority  of  a  final  judgment.    It  may  also  limit,  for  reasons  of 
public  policy,  the  effects  produced  by  such  judgment. 

210.  No  foreign  judgment  can,  in  principle,  be  considered  suffi- 
ciently effective  to  permit  it  to  be  forcibly  executed.  Executory 
force  must  be  given  to  it  by  the  competent  judicial  authority  in 
conformity  with  the  territorial  law,  which  must  determine  whether, 
how  and  when  the  foreign  judgment  may  be  executed  and  what 
rules  of  procedure  must  be  followed. 

The  two  preceding  rules  are  based  on  the  distinction  between  the  two  sub- 
stantial elements  of  any  judicial  decision.  The  judge  called  upon  to  decide  the 
case  must  in  the  first  place  examine  the  rights  of  the  parties  and  declare  their 
reciprocal  rights  in  law.  This  declaration  of  the  right  in  dispute  amounts  to 
a  legal  truth  and  it  cannot  be  denied,  in  principle,  that  it  ought  to  be  given 
extraterritorial  effect.  Nevertheless,  the  sovereign  of  every  country  may 
determine  the  legal  requirements  according  to  which  the  authority  of  a  final 
foreign  judgment  must  be  admitted.  It  is  undoubtedly  necessary  that  the 
decision  of  the  judge  should  conform  with  the  required  conditions  in  order  that 
it  may  be  considered  a  judgment.  Now,  the  determination  of  those  charac- 
teristic conditions,  in  the  absence  of  uniform  rules  laid  down  by  agreement 
in  a  treaty,  must  be  considered  as  within  the  domain  of  the  autonomy  of  every 
state.  Therefore,  it  is  in  accordance  wdth  the  law  of  each  state  that  we  must 
decide  the  conditions  which  the  judgment  emanating  from  a  foreign  court 
must  meet  in  order  to  have  the  authority  of  a  final  judgment. 

The  judge,  however,  does  not  limit  himself  to  declaring  the  right  of  a  party, 
but  orders  the  other  party  also  to  recognize  the  declared  right  and  allows  the 
party  whose  right  is  recognized  to  resort  to  coercive  measures  to  compel  his 
adversary  to  execute  the  decision.  This  is  what  gives  executory  force  to  the 
judgment.  Now,  it  is  natural  that,  by  reason  of  the  autonomy  of  every  state, 
the  coercive  measures  should  be  exclusively  prescribed  by  the  state  on  whose 
territory  the  forcible  execution  of  the  judgment  takes  place. 

211.  Except  for  the  right  possessed  by  every  state  under  the  two 
foregoing  rules,  it  should  be  considered  contrary  to  the  principles 
of  international  law  to  refuse  all  effect  to  the  judgment  pro- 
nounced by  a  foreign  court,  and  to  compel  the  contending  parties 
to  litigate  again  the  merits  of  the  controversy. 

212.  It  is  the  duty  of  civilized  states  to  determine  by  treaty 
what  indispensable  conditions  must  be  met  in  order  that  a  foreign 
judgment  may  have  the  extraterritorial  authority  of  a  final  judg- 
ment and  be  executory.  Such  conditions  ought  to  restrict  the 
powers  of  the  state  court — called  upon  under  territorial  law  to 
order  the  execution — merely  to  an  examination  as  to  whether  the 
judgment  fulfills  the  legal  conditions  necessary  to  give  it  extra- 
territorial effect,  without  the  power  of  compelling  the  parties  to 


160  INTERNATIONAL   LAW    CODIFIED 

discuss  anew  the  subject-matter  of  their  contested  rights.  After 
this  is  done,  the  authority  of  the  territorial  law  could  be  admitted 
in  the  matter  of  execution.  In  that  respect  it  is  advisable  to  ad- 
here to  the  authority  of  the  law  in  force  in  the  place  where  it  is 
desired  to  proceed  with  the  execution. 

The  reciprocal  advantage  to  states  of  regulating  by  treaty  the  execution  of 
foreign  judgments  is  generally  recognized;  but  an  agreement  has  not  yet  been 
reached  in  that  respect,  notwithstanding  various  attempts. 

A  conference  was  contemplated  which  was  to  meet  in  Rome  on  the  initi- 
ative of  Mancini,  but  it  did  not  take  place.  There  is  no  doubt  that  in 
order  to  establish  a  uniform  law  on  the  subject,  a  treaty  is  indispensable. 
This  treaty  ought  to  determine  the  rules  of  international  jurisdiction  (leaving 
to  the  autonomy  of  each  state  those  of  territorial  jurisdiction  and  competence), 
and  ought  also  to  establish  the  rules  regarding  service  of  process  on  absent 
foreigners  and  judicial  commissions  rogatory,  as  well  as  the  rules  which,  in 
general,  relate  to  the  conditions  required  for  the  extraterritorial  validity  of 
judgments.  Thus,  judgments  pronounced  by  the  respective  courts  of  the 
states  which  may  be  parties  to  the  treaty  could  have  the  legal  force  of 
final  judgments  in  the  territories  of  the  contracting  powers.  As  to  making 
executory  in  a  state  final  judgments  rendered  in  a  foreign  country,  it 
must  be  noted  that  such  judgments  might  be  executed  whenever  they  are 
held  final  and  executory  in  the  country  where  rendered,  and  it  would  be 
necessary  to  adhere  to  the  law  in  force  in  the  country  where  they  are  to  be 
executed.  It  should  make  no  difference  whether  the  judgment  was  pronounced 
by  the  competent  court  against  a  foreigner,  a  citizen  of  the  state  where  it  is 
to  be  executed,  nor  should  e.xecution  be  denied  on  that  ground.  Instead,  the 
fact  should  be  ascertained  whether  the  judgment  was  pronounced  in  conformity 
with  the  rules  established  in  the  treaty,  and  the  execution  of  the  judgment 
pronounced  against  the  citizen  of  the  state  in  which  it  is  desired  to  proceed 
to  execution  ought  not,  in  principle,  to  be  refused. 

CONDITIONS    REQUIRED    OF    A    FOREIGN    JUDGMENT    UNDER    INTER- 
NATIONAL  LAW 

213.  The  conditions  required  of  every  judgment,  under  the 
rational  principles  of  international  law,  in  order  to  give  it  extrater- 
ritorial authority  and  be  declared  executory  are: 

a.  That  it  bear  the  character  of  a  final  judgment  under  the  law 
of  the  country  where  the  action  was  brought  and  that  it  be 
executable  in  accordance  with  that  law. 

b.  That  it  shall  have  been  pronounced  by  a  court  competent 
under  the  same  law  with  the  condition,  however,  that  such 
competence  is  not  assigned  to  the  court  in  violation  of  rule 
207; 

c.  That  the  party  against  whom  it  is  desired  to  execute  the  judg- 


RIGHTS    OF   LIBERTY   AND    AUTONOMY  161 

ment  has  been  duly  served  with  a  summons,  or  has  been 
legally  in  default,  taking  into  account  the  rules  prescribed 
for  the  summoning  of  absent  foreigners  under  the  law  of  the 
place  where  the  suit  was  instituted; 

d.  That  it  does  not  wholly  lack  good  cause; 

e.  That  the  judgment  be  not  in  any  way  derogatory  to  the  pub- 
lic law  of  the  state  where  it  is  desired  to  execute  it,  nor  to  the 
territorial  laws  concerning  persons  or  property,  nor  to  public 
poUcy; 

/.  That  it  be  not  pronounced  in  violation  of  the  rules  of  private 
international  law  provided  for  in  any  treaty  in  force  between 
the  state  where  the  judgment  was  rendered  and  the  state 
where  it  is  to  be  executed; 

g.  That,  when  the  judgment  has  been  pronounced  against  a 
citizen  of  the  state  where  its  execution  is  desired  and  the 
judge  has  had  to  apply  the  law  of  that  state,  no  erroneous 
application  of  that  law  has  been  made. 

The  object  of  this  rule  is  to  enumerate  the  conditions  which  might  be  con- 
sidered as  essential,  according  to  rational  international  law,  for  the  execution 
of  a  foreign  judgment.  These  conditions,  we  believe,  might  constitute  the 
common  law  of  states  which  might  wish  to  conclude  a  treaty  in  the  matter. 
In  such  a  case,  the  execution  and  mode  of  procedure  for  declaring  the  judgment 
executable  must  be  regulated  by  the  law  of  the  place  where  it  is  to  be  executed. 
So  long  as  such  a  treaty  has  not  been  concluded,  it  is  natural  that  not  only 
the  execution  of  foreign  judgments,  but  also  their  executory  force,  must  be 
governed  in  every  state  by  the  territorial  law.  Accordingly,  the  execution  of 
such  judgments  must  at  the  present  time  depend  upon  the  municipal  law  of 
every  country  and  it  may  be  ob.served  that  in  that  status  of  the  law,  no  state 
may  claim  that  its  own  rules  shall  have  any  extraterritorial  authority  under 
the  principles  of  reciprocity,  unless  formally  so  stipulated  between  the  country 
where  the  judgment  was  pronounced  and  the  country  where  execution  is 
desired. 

Italy  has  regulated  this  matter  in  articles  941  and  following  of  the  Code 
of  Civil  Procedure.  Tlie  exequatur  is  issued  ujjon  a  proceeding  called  delibazione, 
l)ut  it  cannot  be  claimed  that  the  rules  sanctioned  by  Italy  have  any  authority 
to  regulate  the  execution  in  foreign  countries  of  judgments  of  Italian  courts. 

214.  When  the  party  against  whom  it  is  desired  to  execute  the 
foreign  judgment  insists  that  it  could  not  be  executed  under  the 
lex  fori,  it  is  incumbent  on  the  party  requesting  execution  to  prove 
that  it  is  executabk;  in  the  country  where  rendered. 

215.  Even  when  the  judgment  may  be  executed  under  the  law 
of  the  country  wh(!r(»  i-end(M-(Hi,  the  exequatur  may  be  refused: 

a.  When  the  legal  effects  of  the  judgment,  or  the  legal  fact 


162  INTERNATIONAL  LAW   CODIFIED 

which  it  is  desired  to  establish  are  contrary  to  the  local  public 
law  or  public  policy. 
b.  When  the  means  or  measure  of  execution  ordered  by  the 
foreign  judge  is  forbidden  by  the  territorial  law. 

216.  It  is  the  right  of  every  state  to  regulate  by  its  own  laws 
the  methods  and  forms  of  execution  and  all  matters  relating  to  the 
proceedings  for  execution. 

217.  When  a  foreign  judgment  is  introduced  in  evidence  for  the 
mere  purpose  of  proving  a  legal  fact  or  of  establishing  the  status 
of  persons,  without  any  desire  that  execution  issue  upon  it,  such 
judgment  has  of  itself  the  probative  force  of  any  duly  authenti- 
cated act,  and  shall  fully  prove  its  contents.  It  is  the  right,  how- 
ever, of  every  state  to  determine  the  value  which  shall  be  assigned 
to  the  foreign  judgment  produced,  and  it  must  always  be  left  to 
the  discretion  of  the  competent  judge  to  decide  whether  the  said 
judgment  may  or  may  not  have  probative  force  as  against  the 
party  against  whom  it  is  invoked. 

It  may  be  remarked  that  the  judgment  in  so  far  as  it  is  final  implies,  according 
to  Italian  law,  a  legal  presumption  of  truth.  The  party  in  whose  favor  it  was 
rendered  and  who  produced  it  to  establish  his  right,  is  consequently  exempted 
from  producing  any  other  proof. 

Nevertheless,  if  such  presumption  of  truth  is  assigned,  according  to  the  laws 
of  civilized  countries,  to  the  judgments  of  the  courts  of  the  state  under  the 
principle  res  judicata  pro  veritate  habetur,  that  principle  cannot  apply  to  the 
judgments  rendered  by  foreign  courts.  As  regards  them,  we  must  posit  other 
principles.  It  cannot  be  maintained,  in  fact,  that  the  presumption  of  truth 
assigned  by  the  legislator  to  final  judgments  rendered  by  the  courts  of  the 
state  must  be  extended  to  those  proceeding  from  foreign  courts.  The  legis- 
lator may  undoubtedly  determine  under  what  conditions  the  presumption  of 
truth  may  be  assigned  to  such  decisions;  but  when  the  statute  is  silent,  it 
must  be  admitted  that  it  is  within  the  power  of  the  judge  to  decide  the  question 
by  applying  the  general  principles  of  law. 

Certainly,  it  cannot  be  sufficient,  by  producing  a  document  in  authentic 
form  with  the  claim  that  it  is  a  judgment,  to  draw  the  conclusion  that  it  must 
have  the  authority  of  a  final  judgment  against  the  party  against  whom  it  is 
invoked.  It  is  necessary  for  the  judge  to  make  sure  that  the  document  pro- 
duced is  a  true  judgment  and  in  order  to  assign  to  it  that  character,  it  is 
necessary  to  establish  that  it  fulfills  all  the  requirements  of  the  territorial 
law  in  that  respect. 

The  Italian  legislator,  as  we  have  already  said,  has  established  in  the  Code 
of  Civil  Procedure,  certain  rules  for  the  execution  of  foreign  judgments.  But, 
when  execution  is  not  in  question  and  the  foreign  judgment  is  produced  merely 
for  the  purpose  of  establishing  the  legal  fact  which  the  judgment  sets  forth, 
it  may  be  doubtful  whether  the  conditions  necessary  for  execution  can  be 
regarded  as  complied  with  or  whether  it  can  be  deemed  sufficient  to  assign  to 


RIGHTS   OF   LIBERTY  AND   AUTONOMY  163 

the  judgment  which  is  produced  in  authentic  form,  the  legal  presumption  of 
truth.  Indeed,  it  does  not  seem  so;  but  this  is  not  the  place  to  discuss  the 
(juestion. 

Compare:  Fiore,  Disposizioni  generali  sull'applicazione  e  interpretazione  delle 
leggi,  v.  II,  2d  ed.,  1914,  §§  977,  982,  Napoh,  Marghieri,  Torino;  Unione  Tip.- 
Ed.  Torinese;  id.,  Memoria  letta  all' Accademia  delle  scienze  morali  of  Naples, 
Atli  delV Accademia,  Resoconti,  1903. 


AUTONOMY    OF   THE    STATE    IN   CRIMINAL   MATTERS 

218.  Every  state  has  the  autonomous  right  to  designate  by 
appropriate  laws  the  acts  which  shall  be  deemed  offenses  and  to 
provide  for  their  repression  and  punishment  by  means  of  penalties 
pronounced  against  their  authors  and  accomplices,  subjecting 
indiscriminately  to  penal  and  police  laws  and  to  the  application  of 
the  appropriate  penalties  all  individuals  within  the  state,  whether 
citizens  or  foreigners. 

219.  No  state  can  object  to  the  system  of  penal  legislation  in 
force  in  another  country,  on  the  pretext  that  the  penalties  appli- 
cable to  its  own  citizens  guilty  of  an  offense  are  unjust,  oppressive 
and  not  in  accord  with  the  laws  of  a  civilized  state.  It  can  only 
object  if  its  citizens  are  not  subjected  to  the  same  formalities  of 
procedure  and  furnished  the  same  legal  guaranties  as  are  extended 
to  the  citizens  of  the  state. 

220.  In  like  manner,  every  state  has  the  exclusive  right  to  regu- 
late criminal  prosecutions  and  to  object  absolutely  to  the  per- 
formance by  a  foreign  government  of  any  act,  whatever  its  nature, 
implying  the  exercise  of  penal  jurisdiction  on  the  part  of  that 
state. 

EXECUTION  OF  FOREIGN  PENAL  JUDGMENT 

221.  No  state  can,  without  forfeiting  its  autonomy,  recognize 
in  its  territory  the  authority,  as  a  final  judgment,  of  a  foreign  penal 
decision,  or  insure  its  execution  there. 

222.  The  state  can  only  admit  by  an  express  law  that,  under 
certain  fixed  legal  conditions  and  in  specific  cases,  certain  legal 
effects  (such  as  the  prohibition  of  the  holding  of  public  office 
and  other  incapacities)  arising  fiom  a  penal  sentence  may  result 
from  the  penal  judgment  of  a  foreign  com-t. 

The  state  may,  besides,  hold  that  the  foreign  criminal  judgment 


164  INTERNATIONAL  LAW   CODIFIED 

is  an  effective  title  for  demanding  the  extradition  of  the  accused 
or  convicted  person,  reserving  to  itself  the  right  to  grant  it. 

Our  rules  tend  to  establish  the  principle  of  the  territoriality  of  penal  law 
and  of  the  criminal  action  and  to  exclude  the  execution  of  a  penal  sentence 
in  a  foreign  country.  There  are,  however,  certain  cases  where  the  state  may 
assign  an  extraterritorial  authority  to  the  penal  law  which  it  has  enacted;  but 
such  cases  constitute  an  exception  to  common  law.  See  below,  the  rules  re- 
lating to  penal  jurisdiction. 

The  criminal  action  is,  however,  always  exclusively  territorial,  like  the 
executory  force  of  the  penal  judgment.  Criminal  conviction  implies,  in  fact,  a 
restriction  upon  the  free  exercise  of  personal  rights  and  liberty,  and  it  cannot 
be  admitted  that  it  may  produce  such  effects  outside  of  the  territory  of  the 
state  in  whose  name  the  proceedings  were  instituted.  The  sovereign  may 
decide,  however,  that  in  certain  cases  the  penal  sentence  pronounced  in  a 
foreign  country  against  a  citizen  can  bring  about  certain  effects  resulting  from 
the  status  of  the  convicted. 

The  Italian  legislator  has  provided  as  follows  in  these  matters  in  article  7 
of  the  Criminal  Code  of  1890:  "If,  against  a  citizen,  for  an  offense  committed 
on  foreign  territory,  which  is  not  one  of  the  territories  where  extradition  is  not 
recognized,  a  sentence  has  been  pronounced  which,  under  the  Italian  law, 
might  involve  as  a  penalty  or  penal  effect  the  interdiction  of  public  office 
or  other  incapacity,  the  judicial  authority,  on  recommendation  of  the  public 
prosecutor,  may  declare  that  the  sentence  pronounced  in  a  foreign  country 
shall  produce  in  Italy  the  said  interdiction  or  incapacity;  subject  to  the  right 
of  the  convicted  person  to  ask  that  before  deciding  on  the  recommendation 
of  the  public  prosecutor,  the  proceedings  pursued  abroad  be  reviewed."  See 
also  article  9  of  the  Criminal  Code  of  Baden  and  article  37  of  the  German 
Criminal  Code. 


AUTONOMY  OF  THE  EXECUTIVE  POWER 

223.  The  sovereign  of  the  state  has  the  exclusive  right  to  provide, 
with  the  most  complete  autonomy,  for  the  execution  of  the  laws 
of  the  state  and  for  matters  relating  to  public  administration;  and 
he  is  bound  to  account  for  his  conduct  only  to  the  authorities 
established  according  to  constitutional  provisions. 

224.  Interference  of  a  foreign  state  in  the  acts  of  public  admin- 
istration cannot  be  justified  under  pretense  of  protecting  the  inter- 
ests of  citizens.  Protection  in  that  connection  must  be  considered 
in  the  first  place  as  unlawful  whenever  its  purpose  is  to  obtain  for 
citizens  residing  in  the  foreign  state  a  privileged  position. 

225.  Nevertheless,  a  government  believing  itself  injured  by  the 
actions  of  a  foreign  government  or  considering  that  the  interests 
of  its  own  citizens  are  injuriously  affected  by  such  actions,  may 
protest  and  make  reclamation  through  the  diplomatic  channel. 


RIGHTS   OF   LIBERTY    AND    AUTONOMY  165 

It  may,  moreover,  in  appropriate  cases,  undertake  judicial  action 
before  the  courts  of  the  foreign  country  in  conformity  with  the 
laws  there  in  force,  for  the  defense  of  its  property  rights  vio- 
lated either  by  the  administrative  acts  or  abuses  of  authority  of  the 
foreign  government. 

The  foregoing  rules  are  based  on  the  idea  of  the  autonomy  of  the  state  in 
the  exercise  of  its  powers  and  functions  within  the  state.  Nevertheless,  as  it  is 
incumbent  on  every  government  to  exercise  its  powers  without  injuring  the 
interests  of  foreign  governments  and  citizens,  if  the  administration  should  be 
completely  disorganized  (as  is  the  case  in  Turkey,  for  instance)  foreign  govern- 
ments cannot  be  denied  protection,  through  diplomacy,  of  their  own  interests 
and  those  of  their  citizens,  by  making  before  the  disorganized  government  the 
necessary  representations  to  obtain  the  reorganization  of  its  administration, 
This  is  especially  necessary  where  it  concerns  the  financial  administration, 
whose  abuses  and  corruption  may  gravely  compromise  the  pecuniary  interests 
of  foreign  governments  and  persons. 

In  the  case  of  a  genuine  injury  to  property  rights,  judicial  action  could  be 
exercised  in  the  cases  and  according  to  the  principles  set  forth  below. 

226.  No  sovereign  can  assign  jurisdiction  to  the  courts  of  his 
state  in  proceedings  instituted  by  citizens  against  foreign  gov- 
ernments for  damages  caused  by  acts  of  administration  of  a  for- 
eign government.  Such  claims  could  only  be  advanced  through 
administrative  channels  and  give  rise  to  diplomatic  action,  in 
appropriate  cases. 

This  rule  is  based  on  the  generally  recognized  principle  of  international  law 
that  the  jurisdiction  with  respect  to  administrative  acts  belongs  to  the  state 
in  whose  name  the  acts  were  performed  and  that  to  submit  administrative 
acts  of  a  government  to  the  jurisdiction  of  a  foreign  state  would  be  like  sub- 
jecting one  sovereign  to  another. 

See,  to  this  effect,  the  judgment  of  the  civil  court  of  the  Department  of  the 
Seine  of  May  2,  1828,  in  the  case  of  Ternaux  Gandolphe  against  the  Republic 
of  Haiti: 

"In  view  of  the  fact,"  said  the  Court,  "that  it  is  an  established  principle  of 
international  law  that  states  are  independent  of  each  other;  that  the  most 
immediate  consequence  of  this  fact  is  the  right  of  jurisdiction  which  each 
state  retains  over  its  own  acts;  that  to  subject  the  engagements  or  contracts  of 
one  state  to  the  jurisdiction  of  another  would  necessarily  deprive  the  former 
of  independence  and  render  it  subject  to  the  other,  whose  decision  it  would 
be  compelled  to  obey.   .   .   ." 

The  French  Court  of  Cassation  has  sanctioned  the  same  principle  in  the 
case  of  Lambfege  and  Poujol  against  the  Spanish  government.  Its  judgment 
reads : 

"In  view  of  the  fact  that  the  reciprocal  independence  of  states  is  one  of 
the  most  imiversally  recognized  principles  of  the  law  of  nations;  that  conse- 
quently a  government  cannot  l)e  sul)jefted  with  respect  to  its  contracts  to  the 
jurisdiction  of  a  foreign  state;  that,  indeed,  the  right  of  jurisdiction  possessed 
by  every  government  to  pass  upon  differences  or  cases  which  arise  out  of  its 


166  INTERNATIONAL   LAW    CODIFIED 

governmental  acts  is  a  right  inherent  in  its  sovereign  authority,  which  a  foreign 
government  cannot  usurp  without  exposing  itself  to  the  danger  of  altering 
their  mutual  relations.  .  .  ." 

See  Fiore,  Dirilto  internazionale  piibblico,  4th  ed.,  1904,  v.  I,  §§  418-419,  and 
the  article  under  Agenti  diplomatici,  in  the  Digesto  italiano,  nos.  211-217;  Dal- 
loz,  Jurispr.  generate,  1849,  I,  5. 

227.  The  autonomy  of  the  administrative  power  of  every  state 
must  be  reconciled  with  the  exigencies  arising  out  of  the  common 
existence  of  states  in  international  society. 

LIMITATION   OF   AUTONOMY 

228.  The  autonomy  of  each  state  cannot  be  considered  as  abso- 
lute. It  is  limited  by  the  obligations  imposed  on  all  members  of 
the  Magna  civitas  to  respect,  in  the  exercise  of  all  their  rights,  the 
superior  principles  protecting  the  necessities  of  international  life, 
and  not  to  violate  the  rules  established  to  insure  the  respect  of 
the  common  interests  of  states. 

This  autonomy  may,  moreover,  be  limited  by  virtue  of  conven- 
tions concluded  with  one  or  several  other  powers. 

229.  Every  convention  which  limits  the  autonomy  possessed  by 
each  state  according  to  common  law,  must  be  considered  an  ex- 
ception to  the  general  rule.  It  cannot  extend  beyond  the  case 
expressly  stipulated  nor  be  applied  beyond  the  time  fixed;  it  must 
always  be  construed  as  is  every  exceptional  law  which  restrains 
the  free  exercise  of  rights,  that  is  to  say,  in  the  sense  most  favorable 
to  the  state  which  must  suffer  the  restraint  and  least  restrictive 
of  its  natural  liberty. 

230.  No  limitations  of  autonomy  can  be  based  on  presumptions 
or  inference  or  on  usage  observed  even  for  a  considerable  length  of 
time. 

231.  Forced  limitation  of  the  autonomy  of  a  state  should  be 
considered  as  opposed  to  modern  international  law  when  its  im- 
portance is  so  great  as  to  deprive  the  state  of  its  full  international 
legal  capacity,  by  placing  it,  with  respect  to  another  state,  in  the 
situation  of  a  vassal. 

Such  a  limitation  imposed  by  force  can  be  considered  valid 
only  if  recognized  and  ratified  by  a  Congress. 

Modern  international  law  must  aim  at  doing  away  with  the  anomaly  of 
semi-sovereign  states,  because  history  shows  that  any  relation  of  subordina- 
tion and  vassalage  between  two  states  is  a  permanent  cause  of  international 


RIGHTS   OF  LIBERTY  AND   AUTONOMY  167 

difficulties  and  social  disturbances.  Dualism  in  the  exercise  of  sovereign 
powers  is  incompatible  with  the  idea  of  sovereignty,  because  sovereignty 
must  be  one  and  indivisible.  In  the  old  international  society,  there  was  a 
perpetual  struggle  between  the  vassal  states,  who  wished  constantly  to  recover 
their  absolute  independence,  and  the  suzerain  states  who  wished  to  maintain 
their  high  suzerainty  at  any  cost.  A  striking  example  of  such  a  struggle  is 
furnished  by  the  sanguinary  wars  waged  by  the  Danube  principalities  against 
Turkey, 

232.  The  limitation  of  autonomy  may  be  extinguished  by 
written  agreement,  by  express  or  implied  renunciation  by  the 
state  in  whose  favor  such  limitation  had  been  adopted  or  by 
all  the  modes  of  denouncing  or  terminating  international  conven- 
tions. 

233.  The  limitation  is  also  considered  annulled  when  circum- 
stances have  so  changed  that  if  they  had  existed  thus  modified 
at  the  time  the  limitations  were  established,  the  limitations  would 
have  had  no  reason  to  exist. 

This  rule  would  apply  in  case  of  the  proclamation  of  new  principles  of 
common  international  law  under  which  the  restriction  of  autonomy  previously 
established  would  be  incompatible. 

The  same  conclusion  would  be  reached  in  cases  where,  on  account  of  certain 
events,  relations  between  states  are  substantially  modified.  Thus,  many 
servitudes  of  international  law  born  in  the  middle  ages  by  reason  of  the 
feudal  organization  of  certain  principalities  were  extinguished  in  consequence 
of  the  organization  of  modern  states. 

A  restriction  upon  the  free  exercise  of  the  rights  and  autonomy  of  the  state 
is  that  arising  from  the  system  of  extraterritoriality.  Nevertheless,  as  this 
system  constitutes  an  exception  to  the  general  rules  and  finds  its  justification 
in  the  special  historical  circumstances  existing  in  the  state  subject  thereto,  it 
follows  that  when,  owing  to  the  progress  of  civilization,  the  conditions  are  so 
modified  as  to  destroy  the  historical  conditions  which  justified  such  an  ex- 
ceptional situation,  it  should  be  considered  as  naturally  abolished. 

234.  Any  kind  of  conventional  limitation  of  the  autonomy  of 
the  state  which  gives  rise  to  a  restriction  of  the  free  exercise  of 
sovereign  rights,  may  be  considered  as  a  form  of  international 
servitude. 

It  may  consist  in  the  obligation  not  to  do  something  that  one 
should  have  the  right  to  do,  or  in  the  obligation  to  suffer  and  toler- 
ate another  state's  doing  something  which,  under  common  law, 
it  would  not  be  authorized  to  do. 

We  say,  a  form  of  international  servitude,  because  servitude,  properly  speak- 
ing, always  implies  a  territorial  right,  as  for  instance  the  obligation  of  passage 
or  the  obligation  to  l)uild  a  road  for  commerce. 

Sec  the  rules  n;liiting  to  international  servitudes,  set  forth  below. 


168  INTERNATIONAL   LAW   CODIFIED 

235.  The  first  category  consists  of: 

a.  The  conventional  obligation  imposed  on  certain  states  to 

observe  perpetual  neutrality; 
h.  The  obligation  to  destroy  certain  fortresses  and  not  to  allow 

their  reconstruction; 

c.  The  obligation  not  to  possess  war  vessels  above  a  certain 
number  and  not  to  allow  them  to  enter  certain  waters  of  the 
state; 

d.  The  obligation  of  having  no  arsenals  or  custom  offices  or 
garrisons  in  certain  parts  of  the  territory  of  a  state,  and  all 
other  analogous  restrictions. 

The  obligation  of  permanent  neutrality  imposed  on  certain  states  is  to  be 
considered  as  a  limitation  of  their  autonomy.  Such  is  the  case  of  the  Swiss 
Confederation  by  virtue  of  the  treaty  of  Vienna  of  March  20,  1815;  of  Belgium 
under  the  treaty  of  London  of  November  15,  1831;  of  Luxemburg,  under  the 
treaty  of  London  of  May  11,  1867;  of  Congo,  under  the  declaration  made  by 
that  state  on  August  1,  1885,  in  conformity  with  article  10  of  the  treaty  of 
Berlin  of  1885. 

The  obligation  to  destroy  certain  fortresses  and  not  to  be  allowed  to  rebuild 
them  has  been  stipulated  in  various  treaties,  old  and  recent. 

Thus,  the  obligation  to  demolish  the  fortifications  of  Dunkirk  and  not  to 
rebuild  them  was  imposed  on  France  by  article  9  of  the  treaty  of  Utrecht  of 
March  13  and  April  11,  1713.  In  the  treaty  of  Berlin  of  July  13,  1878,  there 
was  imposed  on  Bulgaria  the  obligation  not  to  erect  any  fortress  within  a 
radius  of  ten  kilometers  around  Samakov  (art.  2).  In  like  manner,  under  the 
same  treaty,  Montenegro  was  forbidden  to  have  any  ships  or  flag  of  war  and 
the  obligation  w^as  imposed  on  her  to  demolish  the  existing  fortresses  and  not 
to  build  any  on  her  territory  between  the  lake  of  Scutari  and  the  coast  (art.  29). 
Compare :  Bonfils,  Droit  international  public,  §§  338  et  seq. 

236.  The  second  category  consists  of: 

a.  The  obligation  to  allow  a  state  to  exercise  the  right  of  police 
and  to  maintain  a  garrison; 

b.  The  obligation  to  allow  one  or  more  states  to  exercise  finan- 
cial control  or  to  collect  taxes; 

c.  The  obligation  to  allow  one  or  more  foreign  states  to  interfere 
in  the  operation  of  certain  public  services,  and  to  provide  for 
the  administration  of  justice. 

Instances  of  this  sort  of  servitude  in  international  law  are  not  lacking.  Thus, 
under  the  treaty  of  Berlin  of  July  13,  1878,  the  obligation  was  imposed  on 
Montenegro  of  allowing  Austria  to  exercise  maritime  and  sanitary  jurisdiction 
at  Antivari  and  on  the  Montenegrin  coast. 

In  1876  the  obligation  was  imposed  upon  Egypt  of  allowing  financial  control 
by  the  states  interested  in  preventing  the  bankruptcy  of  that  country,  which 


RIGHTS    OF   LIBERTY   AND   AUTONOMY  169 

might  have  resulted  from  the  financial  maladministration  of  the  Khedive. 
After  the  war  of  1897  with  Turkey,  the  Great  Powers  imposed  their  financial 
control  on  Greece  so  as  to  protect  the  interests  of  their  citizens.  Cf.  Bonfils, 
op.  ciL,  §  189. 

The  institution  of  mixed  courts  in  Egypt  is  an  example  of  limitation  of  the 
autonomy  of  the  judicial  power,  constituting  a  sort  of  servitude  of  international 
law. 

237.  Every  kind  of  limitation  of  autonomy  may  be  extinguished 
eitiier  by  express  agreement  or  by  virtue  of  the  termination  of 
the  convention  which  estabUshed  it. 

France  was  liberated  from  the  obligation  not  to  rebuild  the  fortification  of 
Dunkirk  which  had  been  imposed  on  it  under  the  treaty  of  Utrecht  of  1713, 
by  causing  the  repeal  of  that  stipulation  in  article  17  of  the  treaty  of  Paris 
of  September  3,  1783. 

Russia  which,  under  articles  13  and  14  of  the  treaty  of  Paris  of  1856,  had 
been  compelled  to  demolish  the  fortifications  it  had  built  on  the  coast  of  the 
Black  Sea,  was  liberated  from  this  servitude  by  declaring  during  the  Franco- 
German  war  of  1870-1871,  that  she  did  not  intend  any  longer  to  be  bound  by 
the  treaty  of  Paris  in  so  far  as  it  restricted  her  rights  on  the  Black  Sea.  In 
,  consequence  of  this  declaration,  the  Great  Powers  met  in  London,  and  under 
the  treaty  concluded  there  March  13,  1871,  Russia  was  relieved  from  the 
obligation  which  had  been  imposed  on  her  by  the  treaty  of  1856. 


TITLE  IX 
RIGHT  OF  INDEPENDENCE 

GENERAL   RULES 

238.  The  independence  of  every  state  consists  in  the  right  to 
prevent  any  sort  of  interference  on  the  part  of  a  foreign  state  and 
to  forbid  on  its  territory  the  exercise,  in  the  name  of  a  foreign 
state,  of  any  act  which  impHes  the  exercise  of  sovereign  power. 

Independence  is  selj-government,  that  is  to  say,  the  most  com- 
plete autonomy  as  regards  every  act  of  government. 

239.  If  a  state,  by  virtue  of  its  independence,  were  to  adopt  a 
system  of  isolation,  forbidding  international  commerce,  prohibiting 
the  peaceful  use  of  avenues  of  communication  and  of  public  insti- 
tutions, closing  all  its  ports  to  merchants  and  preventing  civilized 
states  from  procuring  on  its  territory  objects  of  prime  necessity 
indispensable  for  the  satisfaction  of  their  intellectual  or  moral 
needs,  it  would  violate  the  principles  of  international  law  and 
would  justify  the  collective  intervention  of  the  other  states  in  order 
to  remedy  such  abnormal  conditions,  so  contrary  to  the  general 
interests  of  international  society. 

This  rule  may  serve  to  explain  how  China  was  compelled  to  open  a  cer- 
tain number  of  her  commercial  ports,  owing  to  the  necessity  of  European 
states  to  import  opium  and  to  trade.  The  absolute  isolation  in  which  China 
wished  to  hve  brought  about  the  war  which  England  declared  against  her 
in  order  to  compel  her  to  abandon  her  erroneous  ideas  of  superiority  and 
to  conclude  the  treaty  of  peace  of  Nankin  of  1842,  which  resulted  in  the 
establishment  of  the  first  commercial  relations  of  Europe  with  China  by  the 
opening  up  to  trade  of  the  ports  of  Canton,  Amoy,  Foochow,  Ning-Po  and 
Shanghai. 

Two  years  later,  by  the  treaty  of  Wampo  of  October  24,  1844,  France  was 
recognized  by  China  as  having  the  right  to  trade  and  to  establish  consulates. 

PROPER   LIMITATIONS   OF   INDEPENDENCE 

240.  No  state  can  claim  absolute  independence,  but  only  such 
independence  as  is  compatible  with  that  of  others,  with  the  exigen- 

170 


RIGHT   OF    INDEPENDENCE  171 

cies  of  international  societj^  and  with  the  conditions  indispensable 
to  the  maintenance  of  the  legal  organization  of  that  society. 

241.  No  state  can,  by  virtue  of  its  independence,  claim  the 
right  to  reject  the  collective  intervention  of  states  which  agree 
unanimously  that  the  exercise  of  its  sovereign  powers  constitutes 
a  palpable  violation  of  international  law,  an  offense  against  the 
rights  of  humanity  and  an  evident  violation  of  common  law. 

Domestic  revolutions  must  be  considered  in  principle  as  questions  of  public 
internal  law.  Nevertheless,  it  cannot  properly  be  claimed  that  no  matter 
what  the  conditions  within  a  state,  it  is  a  matter  of  no  import  to  the  other 
countries  of  the  international  society,  and  that  any  interference  by  them 
may  be  rejected  by  virtue  of  the  right  to  independence  possessed  by  every 
state. 

When,  in  the  course  of  civil  war,  massacres,  spoliations,  torture  and  other 
atrocities  occur,  provided  these  acts  as  a  whole  are  in  the  nature  of  an  evident 
violation  of  international  law  and  the  sovereign  of  the  state  has  neither  the 
power  nor  the  means  to  prevent  offenses  against  the  rights  of  humanity,  the 
intervention  of  the  great  powers,  which  agree  upon  the  necessity  of  ending 
such  abnormal  conditions  and  of  restoring  the  authority  of  common  law, 
cannot  be  contested  on  a  claim  of  the  right  of  independence. 

To  be  sure,  if  only  one  or  two  states  wish  to  intervene,  their  action  might 
be  considered  as  an  attack  on  independence,  but  the  same  argmnent  cannot 
hold  when  the  great  powers  agree  upon  the  necessity  of  intervening.  Their 
action  would  then  be  in  the  nature  of  a  collective  legal  protection. 

The  slaughter  of  the  Christians  by  Mussulmen,  encouraged  by  the  indif- 
ference if  not  the  complicity  of  the  Turkish  authorities,  which  took  place  in 
Syria  in  1860  and  those  perpetrated  in  Bulgaria  in  1876,  constitute  cases  calling 
clearly  for  the  application  of  our  rule. 

242.  Collective  intervention  should  be  admitted : 

a.  In  case  of  violation  of  the  rules  of  international  law  by  the 
government  of  a  state; 

b.  When  the  public  authorities,  in  the  exercise  of  their  functions, 
have  manifestly  violated  a  municipal  law  by  applying  it  with 
palpable  injustice  to  the  prejudice  of  foreigners,  and  the 
goverrmient,  notwithstanding  the  just  protests  of  the  states 
of  which  these  foreigners  are  citizens,  has  not  granted  them 
any  satisfaction  as  a  reparation  for  the  arbitrary  acts  com- 
mitted to  their  detriment; 

c.  When  municipal  laws  do  not  afford  sufficient  protection  to 
the  rights  of  foreigners  or  when  legal  guaranties  are  not 
deemed  sufficient  in  matters  of  procedure  effectively  to  pre- 
vent any  abuses  of  power  on  the  part  of  public  authorities. 

243.  When,  iu  apitc  of  a  collective  protest,  the  government  to 


172  INTERNATIONAL   LAW   CODIFIED 

which  it  was  made  continues  arbitrarily  to  maintain  the  conditions 
considered  by  other  states  as  contrary  to  the  principles  of  inter- 
national law  and  to  those  regarded  by  the  protesting  govern- 
ments as  essential  for  the  effective  protection  of  the  rights  of  for- 
eigners, the  difference  thus  arising  may  properly  be  referred,  as 
the  case  may  be,  either  to  an  arbitral  court  or  to  a  Conference. 

244.  When  the  arbitral  court  or  the  Conference  recognizes  the 
justice  of  the  claim,  it  is  incumbent  on  the  state  summoned  before 
it  to  conform  to  the  award  or  finding.  In  case  of  a  persistent 
refusal  voluntarily  to  execute  such  award,  the  government  which 
filed  the  protest  may,  after  it  has  exhausted  diplomatic  action, 
and  should  the  case  warrant  it,  resort  to  compulsion  to  secure 
execution  by  means  admissible  under  international  law. 

Suppose,  for  instance,  that  during  a  civil  war,  justice  should  be  administered 
with  partiahty,  as  happened  in  1907  in  Guatemala  where,  as  the  result  of  an 
attempt  to  assassinate  President  Cabrera,  a  court-martial  rendering  summary 
justice  pronounced  the  death  sentence  upon  19  persons  who  were  declared 
guilty  of  that  crime,  in  the  absence  of  all  regular  proceedings.  One  could  not 
in  our  opinion,  under  such  circumstances  justify  matters  by  invoking  the 
principle  of  the  autonomy  of  the  judicial  power  of  every  state. 

Autonomy  could  not,  in  fact,  be  invoked  to  the  extent  of  violating,  to  the 
prejudice  of  foreigners,  the  principles  of  common  law  which  protect  the  rights 
of  humanity;  nor  could  objection  be  made  to  collective  interference  and 
action  to  insure  respect  for  the  authority  of  law. 

245.  The  principle  of  collective  intervention,  considered  as  a 
legal  method  of  limitation  upon  the  absolute  independence  of  a 
state,  must  be  applied  without  discrimination  whether  the  facts 
occurred  in  Europe  or  America. 

The  purpose  of  this  rule  is  to  determine  the  correct  conception  of  the  law 
which  ought  to  govern  international  society.  Since  this  society  is  constituted 
by  all  the  states  which  have  relations  with  one  another,  they  must  all  without 
distinction  be  subject  to  the  fundamental  laws  designed  to  maintain  the  legal 
organization  of  such  society.  It  cannot  be  admitted  that  international  law 
may  have  a  varying  authority,  depending  upon  whether  it  is  to  be  applied  to 
the  states  of  Europe  or  America.  Contrary  to  this  correct  idea  is  the  hardl3' 
reasonable  one  proclaimed  by  the  United  States  under  the  name  of  the  Monroe 
doctrine,  according  to  which  American  states  alone  have  the  right  to  .settle 
with  complete  independence  any  question  which  might  concern  them.  Presi- 
dent Monroe,  in  his  message  at  the  convening  of  Congress  on  Dec.  3,  1823, 
expressed  himself  as  follows: 

"But,  with  the  governments  who  have  declared  their  independence,  and 
maintained  it,  and  whose  independence  we  have,  on  great  consideration,  and 
on  just  principles,  acknowledged,  we  could  not  view  any  interposition  for  the 
purpose  of  oppressing  them,  or  controlling,  in  any  other  manner,  .their  destiny, 


RIGHT   OF   INDEPENDENCE  173 

b}'  any  European  power,  in  anj-  other  light  than  as  the  manifestation  of  an 
unfriendly  disposition  towards  the  United  States."  The  President  really 
meant  to  oppose  any  intervention  of  the  European  powers  which  contemplated 
an  attack  upon  the  independence  of  the  colonies  which  had  lately  declared 
their  independence.  In  that  respect  he  expressed  a  proper  view  in  affirming 
that  the  political  independence  of  those  new  states  could  not  admit  of  any  limi- 
tation. 

Monroe's  doctrine  was  subsequently  exaggerated  by  those  who,  making 
no  proper  distinction  between  matters  of  general  interest  which  doubtless 
cannot  be  solved  independently  of  each  of  the  interested  states,  and  those  of 
I)rivate  interest,  have  sought  to  find  in  the  message  the  affirmation  of  the 
absolute  independence  of  the  American  states  in  all  matters  in  which  they 
might  be  concerned,  whatever  their  substance  or  purpose.  This  is  abso- 
lutely inadmissible. 

Finally,  it  has  been  sought  to  invoke  the  Monroe  doctrine  by  objecting  to 
any  action  of  European  powers,  when,  in  order  to  protect  the  interests  of  their 
subjects,  they  have  rightly  reminded  certain  American  states  that  they  must 
respect  their  obligations  toward  these  individuals. 

The  Monroe  doctrine,  thus  understood,  results  in  allowing  an  American  state 
to  disregard  the  principles  of  justice  in  its  relations  with  foreigners,  to  violate 
moral  laws,  to  refuse  to  entertain  the  just  claims  of  foreigners  injured  by  its 
acts,  to  create,  thus,  an  abnormal  and  illicit  state  of  affairs  under  the  principles 
of  common  law  and  international  morals,  and  to  object  to  any  form  whatsoever 
of  interference  designed  to  put  an  end  to  such  manifest  violations  of  the  prin- 
ciples of  justice,  by  advancing  in  opposition  the  principle  of  its  independence 
and  the  Monroe  doctrine.    Surely,  this  is  not  admissible. 

Can  it  be  maintained  that  the  American  states  may  so  take  advantage  of 
their  independence  as  to  scorn  openly  the  legal  order  and  the  laws  of  the 
international  society? 


TITLE  X 
RIGHT  OF  IMPERIUM 

GENERAL  RULES 

246.  The  right  of  imperium  or  sovereignty  consists  of  the  emi- 
nent domain  which  resides  in  the  sovereign  of  every  state  over  all 
its  territory  and  over  analogous  places. 

Under  this  right,  the  sovereign  possesses  the  supreme  power  to 
subject  all  individuals,  either  citizens  or  foreigners,  residing  in  the 
territory  or  places  within  his  domain,  to  the  laws  he  has  enacted 
to  protect  the  rights  of  individuals,  of  groups  and  corporations  and 
of  the  State  and  to  assure  the  respect  of  international  law. 

247.  No  act  of  authority,  command  or  coercion  can  be  enforced 
outside  the  territory  and  places  where  the  sovereign  exercises 
eminent   domain. 

Roman  jurists  considered  the  right  of  imperium  as  so  exclusively  territorial 
that  they  defined  territory  as  the  whole  of  the  lands  over  which  command 
and  coercive  power  could  be  exercised.  Territorium,  said  Pomponius,  est 
universitas  agrorum  intra  fines  cuj usque  civitatis,  quod  ab  eo  dictum  quidam  aiunt 
quod  magistralus  ejus  loci  intra  eos  fines  terrendi,  id  est  summovendi  jus  habei 
(L.  239,  §  8,  Dig.,  De  verborum  significatione) . 

On  the  bases  of  this  same  idea,  the  jurist  Paul  said:  Extra  territorium  jus 
dicendi  impune  non  paretur  (L.  20,  Dig.,  De  jurisdictione,  2,  1). 

248.  The  right  of  imperium  is  exercised  with  respect  to  per- 
sons and  to  the  territory  and  to  things  in  the  territory. 

RIGHT   OF   IMPERIUM   WITH  REGARD  TO   CITIZENS 

249.  The  right  of  imperium  or  sovereignty  of  the  sovereign  of 
the  State  with  regard  to  citizens  is  based  on  the  nature  of  citizen- 
ship and  consists  in  his  power  to  regulate  by  his  laws  the  status 
of  the  state's  citizens  even  in  foreign  countries — their  personal 
status  and  legal  capacity,  their  family  relations  and  all  rights 
arising  from  these  relations,  including  the  right  to  transfer  prop- 
erty to  legitimate  heirs  by  gift  or  by  will. 

174 


RIGHT   OF   IMPERIUM  175 

250.  The  sovereign  of  the  State  may  also  recall  to  the  territory 
citizens  residing  abroad,  when  he  deems  their  presence  necessary 
for  the  defense  of  the  country  or  for  the  performance  of  their 
military  service. 

251.  The  submission  of  a  citizen  to  the  authority  of  the  sover- 
eign of  the  state  to  which  he  belongs,  arising  as  it  does  out  of  the 
very  nature  of  citizenship,  may  be  held  to  subsist  until  the  citizen 
loses  his  nationality  of  origin  by  becoming  a  citizen  of  another 
state. 

252.  No  sovereign  may  refuse  to  a  citizen  the  right  to  expatriate 
himself  and  to  acquire  citizenship  in  another  state.  The  previous 
authorization  of  the  sovereign  as  a  condition  preliminary  to  the 
exercise  of  such  right  cannot  be  considered  as  based  on  allegiance. 

The  sovereign  has  the  right,  however,  to  demand  that  those  who 
would  wish  to  expatriate  themselves  shall  first  serve  their  time  in 
the  army  in  the  country  of  their  origin.  Furthermore,  he  has  the 
right  to  treat  as  a  rebel  anyone  who  has  fought  against  his  mother 
country. 

Formerly,  it  was  admitted  that  every  individual  was  considered  as  attached 
to  the  sovereign  of  his  mother  country  by  allegiance,  which  was  held  to  be  in 
itself  a  permanent  and  everlasting  bond  which  could  not  be  broken  bj'  the 
person  so  bound  without  the  consent  of  his  prince. 

It  is  by  reason  of  this  relation  that  the  legislation  of  certain  states  provides 
for  a  permanent  obligation  of  fidelity  and  obedience  of  a  citizen  towards  the 
sovereign  of  his  country  of  origin  and  denies  him  the  right  to  expatriate  himself 
and  to  become  naturaUzed  abroad  without  the  consent  of  the  sovereign.  In 
some  countries  allegiance  was  considered  as  a  relation  so  absolute  and  per- 
manent that  it  was  called  inalienable  and  imprescriptible,  notwithstanding 
the  many  personal  facts  to  repudiate  it. 

Such  was  the  case  under  the  Swiss  federal  law  previous  to  the  Act  of  July  6, 
1876,  and  under  the  English  law  previous  to  that  of  May  12,  1870,  providing 
that  an  Englishman  may  forswear  his  allegiance  by  becoming  naturalized 
aljroad. 

This  relation,  so  far  as  it  is  considered  absolute,  inalienable  and  imprescript- 
ible, must  be  held  contrary  to  the  international  rights  of  man.  Compare: 
Bonfils,  Droit  inlerrmlional  public,  §  423.  (See  also,  Borchard,  Diplomatic  pro- 
tection of  citizens  abroad,  New  York,  1915,  §§  4-5,  237-238,  316,  320-321— 
Transl.j 

253.  The  sovereign  may  punish  a  citizen  guilty  of  an  offense 
committed  on  foreign  territory,  when  he  returns  to  his  home  terri- 
tory and  has  not  been  tried  and  punished  in  the  country  where  the 
offense  was  committed. 

This  power  should  be  justly  exercised  when  it  involves  offenses 


176  INTERNATIONAL  LAW   CODIFIED 

of  some  importance,  such  as  those  involving  punishment  restrict- 
ing personal  liberty  for  not  less  than  three  years. 

Without  admitting  that  criminal  law  may  assume  with  respect  to  the 
citizen  the  character  of  a  personal  statute,  we  may  justify  the  punishment 
of  the  citizen  who  has  debased  the  dignity  of  the  national  character  abroad. 


LIMITATION   OF   THE   RIGHT   OF   IMPERIUM 

254.  The  sovereign  cannot,  by  virtue  of  his  right  of  sovereignty 
over  citizens,  execute  against  them,  while  abroad,  any  coercive  acts, 
either  directly  or  indirectly,  to  compel  them  to  obey  him.  Nor 
can  he  require  the  sovereign  of  the  foreign  state  to  recognize  the 
authority  of  the  laws  enacted  by  him  with  respect  to  the  said 
citizens,  unless  so  provided  in  a  special  treaty. 

RIGHT   OF   IMPERIUM   AS   REGARDS   FOREIGNERS 

255.  Every  foreigner  entering  the  territory  of  a  state  is  bound, 
so  long  as  he  remains  there,  to  submit  to  the  authority  of  the  laws 
of  public  security,  police  and  public  order  and  to  the  municipal 
public  law  in  general.  He  cannot  complain  if  those  laws  are  more 
oppressive  than  or  different  from  those  of  his  own  country.  He 
can  only  demand  that  there  be  no  discrimination  between  him- 
self as  a  foreigner  and  citizens  of  the  state  in  the  rules  of  proce- 
dure and  the  application  of  legal  guaranties, 

256.  It  cannot  be  considered  as  in  conformity  with  the  princi- 
ples of  law  and  international  practice  to  subject  foreigners  who  are 
not  permanent  residents  to  civil  and  military  service,  forced  loans, 
war  contributions  and  any  extraordinary  contribution  imposed 
on  citizens. 

These  charges  may  be  imposed  only  on  foreigners  who  are  per- 
manently domiciled  in  the  state  on  the  condition,  however,  that 
they  be  granted  a  reasonable  time  to  transfer  their  residence  else- 
where, if  they  are  unwilling  to  submit  to  the  application  of  oppres- 
sive laws  promulgated  since  the  establishment  of  their  residence. 

257.  The  sovereign  of  every  state  has  the  right  to  expel  a  for- 
eigner on  grounds  of  public  policy  or  if  his  presence  is  harmful 
to  the  state.  This  right  must  be  admitted  especially  with  regard 
to  the  foreigner  convicted  of  crime,  when,  according  to  territorial 


RIGHT   OF   IMPERIUM  177 

law,  expulsion  is  a  collateral  penalty  attaching  to  criminal  convic- 
tion. 

We  must  also  admit  the  right  to  expel  the  foreigner  who,  by 
general  common  law,  would  be  subject  to  extradition,  if  the  re- 
quest for  extradition  is  not  made  by  the  state  concerned,  either 
because  of  neglect  on  its  part,  or  because  of  the  absence  of  an 
extradition  treaty. 

Expulsion  can  never  be  ordered  in  the  interest  of  private  in- 
dividuals, either  to  prevent  legitimate  competition,  or  to  protect 
them  from  law  suits  instituted  against  them  in  the  territorial  courts 
or  before  competent  territorial  authorities,  or  for  any  other  reason 
foreign  to  the  public  interest. 

258.  Expulsion  of  a  foreigner  ought  always  to  be  justifiable  if  he 
is  found  to  be  a  beggar  or  in  a  state  of  vagrancy;  if  he  has  settled 
in  the  state  secretly  or  under  a  fictitious  name;  if  he  is  suffering 
from  a  contagious  disease  liable  to  constitute  a  menace  to  public 
health;  if,  by  the  life  he  is  leading,  he  offends  public  morals,  as  in 
the  case  of  prostitution  or  the  practice  of  professions  or  trades 
forbidden  by  law;  if  through  his  illegal  acts  he  endangers  the 
domestic  safety  of  the  state  or  exposes  the  government  to  just 
claims  on  the  part  of  friendly  governments,  thus  imperilling  the 
amicable  relations  existing  between  the  two. 

259.  It  is  incumbent  on  civilized  states  to  regulate  by  law  the 
expulsion  of  foreigners,  in  ordinary  as  well  as  extraordinary  cases, 
so  as  to  prevent  anj'  arbitrary  act  by  the  executive  power  and 
to  protect  the  personal  liberty  and  inviolability  of  foreigners. 

260.  Expulsion  of  a  foreigner  by  administrative  decision  may 
be  justified  in  exceptional  cases  on  serious  grounds  of  public  policy. 
Nevertheless,  the  expelled  individual  ought  to  have  the  privilege 
of  entering  a  caveat  against  the  administrative  decision  before  a 
court,  which  would  then  be  called  upon  to  examine  the  circum- 
stances upon  which  the  expulsion  was  based.  In  all  cases,  we 
should  admit  the  right  of  the  government  of  the  country  of  the 
exp(;lled  individual  to  demand  and  obtain  explanations  as  to  the 
reasons  which  brought  about  the  expulsion  and  to  require  the  ob- 
servance of  the  rules  of  procedure  laid  down  by  municipal  law. 

See  on  this  .sul)je(;t:  Fiorc,  Traile  de  droit  penal  international,  translated  by 
Charles  Antoino,  Paris,  ISSO,  v.  I,  chap.  3:  Du  droit  d'exjniher  I'etranger. 
There  arc  mentioned  in  this  chapter  the  laws  in  force  in  various  countries 
relating  to  the  expulsion  of  foreigners. 


178  INTERNATIONAL   LAW    CODIFIED 

Institut  de  droit  international,  session  of  Hamburg,  v.  XL  See  in  that 
volume,  the  Projet  de  reglementation  de  Vexpulsion  des  Strangers,  by  Feraud- 
Giraud.  See  also  Oppenheim,  International  law,  v.  I,  2d  ed.,  §§  323-326,  p. 
399;  [and  Borchard  op.  cit.,  §§  27-32— Transl.J 

261.  The  wholesale  expulsion  of  foreigners  may  be  justified 
only  when,  by  their  presence,  they  seriously  disturb  public  order 
and  tranquillity.  This  measure,  therefore,  may  be  maintained  so 
long  as  the  public  necessities  which  caused  it  continue  to  exist.  In 
time  of  war,  the  collective  expulsion  of  foreigners  may  be  justified 
by  the  necessity  of  protecting  the  national  interests. 

262.  The  foreigner  must  be  served  with  a  notice  of  his  expulsion, 
and  he  must  be  given  a  reasonable  time  to  leave  the  territory  of 
the  state.  Coercive  measures  to  carry  out  the  order  of  expulsion 
are  legitimate  only  after  the  expiration  of  this  reasonable  time  or 
when  the  foreigner  has  failed  to  meet  the  conditions  imposed  upon 
him  by  the  order  of  expulsion. 

263.  Expulsion  ordered  against  a  class  of  individuals  or  against 
all  foreigners  belonging  to  the  same  state  should  be  subject  to  the 
rules  of  legal  publication  laid  down  by  municipal  law. 

The  interested  parties  should  in  principle  be  granted  a  reasonable 
time  for  the  voluntary  execution  of  the  order  of  expulsion.  Coer- 
cive measures  should  only  be  resorted  to  after  this  period  has 
expired. 

However,  in  certain  exceptional  and  urgent  cases,  the  expulsion 
may  be  carried  out  by  the  use  of  coercive  measures  directed  against 
all  individuals  declaring  themselves  unwilling  to  comply  with  the 
order  as  published,  especially  when  these  individuals  prepare  to 
resist  its  execution. 

264.  The  order  of  expulsion  may  also  indicate  the  point  of  the 
frontier  designated  for  leaving  the  territory,  taking  into  account, 
so  far  as  possible,  the  interests  of  the  expelled  individual. 

The  government  may  always  keep  the  expelled  foreigner  under 
surveillance  as  far  as  the  frontier,  and  if  need  be,  oblige  him  to  leave 
the  territory  on  board  a  certain  ship,  so  as  to  insure  the  execution 
of  the  order  of  expulsion. 

RIGHT  OF   SOVEREIGNTY   OVER  TERRITORIAL  WATERS 

265.  The  territorial  sea  must  be  considered  as  constituting  a 
part  of  the  domain  of  the  state  to  which  the  coasts  belong.    By 


RIGHT   OF   IMPERIUM  179 

virtue  of  this  eminent  domain,   every  state  has  the  exclusive 

right  to  provide  for  the  security  and  defense  of  the  territory  of  the 

.  State,  the  protection  of  the  private  interests  of  its  citizens,  the  free 

I  carrying  on  of  commerce,  and  the  protectioij  of  the  general  and 

fiscal  interests  of  the  State. 

No  state  can,  however,  assume  the  right  to  prohibit  the  in- 
offensive use  of  its  territorial  waters. 

266.  Every  state  has  the  exclusive  right  to  regulate  the  patrol 
of  navigation  within  territorial  waters,  the  approach  to  the  coasts, 
the  entrance  into  ports,  the  obligation  to  take  a  local  pilot,  free 
pratique  and  all  similar  matters.  It  is  incumbent  upon  it  to  es- 
tablish a  strict  supervision  so  as  to  insure  compliance  with  the  laws 
and  regulations  by  providing  punishment  for  those  who  infringe 
them. 

267.  The  right  to  fish  and  collect  all  under-water  products 
within  territorial  waters  may  be  reserved  for  citizens,  except  when 
treaties  extend  the  fishing  privilege  to  foreigners. 

Fishing  in  territorial  waters  is  generally  regulated  by  commercial  treaties 
and  by  special  conventions  covering  the  matter.  In  several  treaties  concluded 
by  Italy,  fishing  in  Itahan  territorial  waters  is  reserved  for  her  citizens.  It  is 
so  stipulated  in  the  treaty  with  Austria-Hungary  of  December  6,  1891,  ar- 

I  tide  18,  and  in  the  treaty  with  Mexico  of  April  6,  1890,  article  17,  and  others. 

*  The  delimitation  of  the  fishing  limits  in  the  bay  of  Mentone  was  determined 

by  the  convention  of  June  18,  1892,  between  Italy  and  France.  There  are 
many  instances  of  treaties  where  the  reservation  of  the  exclusive  right  of 
citizens  to  fish  in  territorial  waters  is  not  stipulated.  It  is  always  necessary 
to  refer  to  special  conventions,  to  decide  whether  or  not  such  reservation  has 
been  made.  In  principle,  in  the  absence  of  a  treaty  of  commerce,  the  privilege 
ought  to  be  recognized  as  reserved  to  citizens.  Compare  Oppenheim,  Inter- 
national law,  I,  §  187. 

268.  Let  us  suppose  that  by  the  law  of  a  state  fishing  in 
territorial  waters  is  reserved  to  citizens,  and  in  a  special  treaty 
concluded  with  another  state  the  right  of  fishing  is  granted  to  the 
citizens  of  that  state.  If,  in  the  commercial  treaty  concluded  with 
another  state  the  right  of  fishing  is  not  expressly  reserved  to  citi- 
zens, and  if  the  treaty  contains  the  clause  under  which  the  con- 
tracting parties  are  assured  the  privileges  of  the  most  favored 
nation,  the  reservation  based  on  the  law  granting  citizens  alone  the 
right  to  fish  in  territorial  waters  should  not  be  considered  as  im- 
pliedly renounced  on  the  ground  that  the  right  of  fishing  has  been 
granted  in  a  treaty  concluded  with  another  state. 


180  INTERNATIONAL  LAW   CODIFIED 

The  French  law  of  March  1,  1885  prohibits  foreigners  from  fishing  in  the 
territorial  waters  of  France  and  Algeria  and  reserves  this  right  to  French 
citizens.  Now,  let  us  suppose  that  a  state,  such  as  France,  reserves  fishing  in 
its  territorial  waters  to  its  citizens  and  that,  afterward,  by  a  treaty  concluded 
with  state  A,  it  stipulates  that  fishing  in  the  respective  territorial  waters  shall 
be  permitted  under  reciprocity  to  the  citizens  of  the  two  contracting  parties. 
Let  us  suppose,  furthermore,  that  in  a  later  treaty  concluded  with  state  B 
there  is  inserted  the  most  favored  nation  clause.  In  such  instances,  could  it 
be  held  that,  by  reason  of  such  clause,  the  citizens  of  state  B  could  claim  the 
right  of  fishing  conceded  to  state  A?  Derogations  from  the  general  law  reserv- 
ing fishing  to  citizens  may  only  be  sought  in  a  special  law,  and  as  special  laws 
derogating  from  the  general  law  are  strictly  interpreted,  it  cannot  be  admitted 
that  the  derogation  contained  in  the  special  concession  to  state  A  should 
apply  to  other  powers.  It  would  in  fact  require  another  special  express  pro- 
vision in  favor  of  another  state  to  furnish  a  derogation  in  its  favor,  from  the 
general  law  reserving  fishing  in  territorial  water  to  citizens. 

269.  The  sovereign  of  every  state  also  has  the  right  to  reserve 
the  coasting  trade  to  citizens.  This  right  must  be  considered  as 
reserved,  whenever  it  has  been  estabhshed  by  law  or  custom  and  no 
derogation  therefrom  has  been  suffered  by  treaty. 

The  expression  "coasting  trade"  denotes  the  transportation  of  merchandise 
and  passengers  between  two  parts  of  the  same  state.  This  trade  as  a  rule  is 
reserved  exclusively  for  national  ships.  We  believe,  however,  that  as  the  right 
of  free,  peaceful  navigation  over  the  territorial  sea  is  now  conceded,  the 
privilege  cannot  be  sustained  except  by  virtue  of  a  special  law  of  the  state  or 
established  custom.  The  rule  reserving  the  coasting  trade  to  citizens  is  gen- 
erally adopted  in  all  European  states;  in  Germany,  by  the  law  of  May  22,  1881, 
in  Spain,  by  the  ordinance  of  July  15, 1870,  and  in  France,  by  the  law  of  April  2, 
1889.  In  England,  an  order  in  council  prohibits  the  coasting  trade  to  vessels  of 
countries  which  do  not  admit  reciprocity.  In  the  United  States,  foreign  vessels 
are  absolutely  excluded  from  the  coasting  trade.  On  the  other  hand,  in  Bel- 
gium, the  coasting  trade  is  free  because  there  is  no  law  prohibiting  it.  In 
Italy,  by  the  law  of  July  11, 1904,  no.  167,  the  coasting  trade  is  reserved  to  the 
national  flag,  provided  no  special  conventions  or  treaties  stipulate  otherwise. 

Compare:  Oppenheim,  International  law,  v.  I,  §§  187-188. 

270.  The  State  has  the  right  to  regulate  transit  in  territorial 
waters  in  order  to  provide  for  the  necessities  of  its  defense  and  to 
protect  its  fishing  interests  and  to  prohibit  the  transportation  of 
certain  goods  (arms,  ammunition,  alcohol,  etc.)  and  in  general  any 
transportation  which  may  be  suspected  of  violating  the  customs 
laws.  It  may,  therefore,  subject  foreign  vessels  entering  territorial 
waters  to  visit  and  inspection  in  order  to  prevent  any  violation 
of  the  laws  and  regulations  against  smuggling. 

This  rule  may  find  application  with  respect  to  the  trade  in  fire-arms,  muni- 
tions of  war  and  alcoholic  drinks  intended  for  Africa.    Since  experience  has 


RIGHT   OF   IMPERIUM  181 

proved  that  the  importation  of  such  goods  greatly  imperils  the  security  of  the 
states  which  exercise  rights  of  sovereignty  or  protection  in  Africa,  it  was 
agreed  that,  independently  of  the  agreement  concluded  under  the  general 
Act  of  the  Conference  of  Brussels  of  July  2,  1890,  any  state  could  by  law 
forbid  the  transportation  of  such  merchandise  in  the  territorial  waters  of  its 
African  possessions  and  declare  it  smuggling  and  punish  it  as  such. 

271.  The  right  of  control  and  patrol  of  a  state  over  its  territorial 
waters  may  be  properly  exercised  by  subjecting  merchant  vessels 
suspected  of  carrying  on  smuggling  to  the  visit  of  its  war  vessels 
or  those  specially  designated  for  the  purpose,  and  by  applying 
the  penalties  provided  by  law  (fines,  confiscation  of  merchandise, 
etc.)  to  those  found  guilty  of  that  offense. 

The  application  of  police  measures  and  regulations  shall  always 
be  permissible  in  the  territorial  waters  of  any  state  for  the  protec- 
tion of  its  fishing  interests  and  the  observance  of  its  customs  laws. 

A  special  law  is  indispensable  for  the  exercise  of  such  a  right;  because  the 
application  of  penalties  is  not,  in  principle,  admissible  without  a  statute. 
Great  Britain  has  a  special  law  on  this  matter,  that  of  August  28,  1833,  which 
prohibits  the  violation  of  customs  regulations.  Under  this  law,  merchant  ves- 
sels found  in  British  territorial  waters  are  considered  as  suspects  whenever 
they  deviate  from  their  route  to  their  port  of  destination  and  cannot  justify 
such  deviation  by  the  condition  of  the  weather  and  sea.  They  may  be  liable 
to  penalties  to  the  extent  of  confiscation  of  their  merchandise,  when  they 
fail  to  comply  with  the  notice  to  retire  within  48  hours.  In  France,  they 
apply  the  law  of  Germinal  4,  year  2,  article  7,  title  11,  which  provides  the 
penalty  of  confiscation  of  goods  whose  importation  into  France  is  prohibited, 
when  these  goods  are  found  on  board  a  merchant  ship  in  French  territorial 
waters,  and  which  inflicts,  besides,  a  fine  of  500  francs  on  the  captain  of  such 
vessel. 

EXTENT   OF  THE   TERRITORIAL   SEA 

272.  By  customary  law,  territorial  waters  extend  three  sea 
miles  from  low  water  mark. 

Nevertheless,  we  must  recognize  the  common  advantage  in 
extending  the  territorial  sea  to  at  least  five  miles  from  the  coast,  so 
as  more  effectively  to  safeguard  the  rights  of  the  littoral  states. 

The  three  mile  limit  is  at  the  present  time  considered  as  generally  fixed  to 
determine  the  maritime  zone  over  which  a  state  may  exercise  its  jurisdiction. 
See  Calvo,  Droit  international  public,  §355,  4th  ed.,  1887.  "This  zone,"  he 
says  "is  the  limit  which  has  been  generally  recognized  by  international  con- 
ventions, notably  by  article  1  of  the  treaty  of  October  20,  1818,  between  Great 
Britain  and  the  United  States;  by  the  Belgian  law  of  June  7,  1832;  by  articles  9 
and  10  of  the  treaty  of  August  2,  1839  and  article  1  of  the  treaty  of  Novem- 
ber 11,  1867,  between  France  and  Great  Britain. 

To-day,  the  tendency  is  to  extend  the  limit  of  the  territorial  sea  especially 


182  INTERNATIONAL  LAW   CODIFIED 

with  a  view  to  insuring  a  better  defense,  the  necessities  of  which  have  grown 
greater  by  reason  of  the  progress  in  the  means  of  attack  and  the  range  of  guns. 
Nevertheless,  an  international  convention  is  needed  to  modify  customary  law. 
The  government  of  the  Netherlands,  in  1895,  took  the  initiative  in  negotiating 
for  an  extension  of  the  territorial  sea  to  six  miles  from  the  coast.  This  was  also 
the  proposition  advanced  by  the  Institute  of  International  Law  in  1894  at 
the  Paris  session. 

273.  No  state  can  by  a  special  law  extend  the  territorial  sea 
beyond  the  limits  established  by  customary  law. 

If,  however,  a  state  has  proclaimed  by  municipal  law  that  its 
territorial  waters  in  the  matter  of  the  exercise  of  police  and  fishing 
jurisdiction,  are  to  be  considered  as  extending  beyond  three  miles 
(six  at  the  utmost)  and  if  the  other  states  have  not  protested, 
the  state's  exercise  of  police  jurisdiction  and  supervision  of  customs 
within  the  limits  thus  fixed  cannot  be  disputed,  unless  a  court  of 
arbitration  decides  to  the  contrary. 

Certain  states  have,  in  fact,  extended  the  limits  of  the  territorial  sea  from 
the  point  of  view  of  the  dominion  which  they  claim  over  it.  Great  Britain 
proclaims  and  exercises  its  right  of  supervision  to  twelve  miles  from  the  coast. 
In  France,  the  zone  for  the  supervision  of  customs  was  carried  to  two  myria- 
meters  by  the  law  of  March  27,  1817  (art.  13).  We  cannot  admit,  however, 
that  the  rules  of  international  law  can  be  modified  by  a  unilateral  act. 

Nevertheless,  we  may  observe  that,  on  the  one  hand,  the  majority  of  publicists 
recognize  the  necessity  of  extending  the  territorial  sea  to  at  least  five  sea  miles 
from  the  coast,  and  that,  on  the  other  hand,  certain  states,  in  fact,  have  by 
municipal  law  enlarged  the  limits  of  their  territorial  waters  for  the  exercise  of 
their  jurisdiction.  Under  such  circumstances  of  fact,  it  would  seem  that,  al- 
though not  admitting  that  a  state  may  assume  the  right  to  modify  by  a  mu- 
nicipal law  the  rule  of  international  law  relating  to  the  width  of  the  territorial 
sea  without  exposing  itself  to  the  just  protests  of  the  other  powers,  yet  it  may 
be  said  that  everyone  may  rely  upon  the  common  opinion  of  writers  and  on 
fact,  to  practice  what  others  practice.  In  this  way,  the  adoption  of  a  different 
customary  law  as  regards  the  extent  of  the  territorial  sea  may  gradually  be 
arrived  at,  or  else,  on  account  of  the  just  protests  of  third  powers,  the  necessity 
wdll  arise  of  referring  to  the  decision  of  an  arbitral  court  the  question  as  to 
whether  or  not  a  state  may  assign  a  greater  extent  to  its  territorial  sea  for 
the  exercise  of  its  jurisdiction.  Of  course,  through  its  award,  the  Court  would 
lay  down  a  rule  obligatory  on  all  the  states  until  such  time  as  they  may  agree 
to  establish  rational  rules  for  determining  the  extent  of  the  territorial  sea  and 
their  reciprocal  rights  in  relation  to  it. 

274.  The  territorial  sea  can  be  extended  by  a  treaty  designed 
to  regulate  the  application  of  customs  laws  and  the  reciprocal 
right  of  supervision  and  control  of  the  respective  governmental 
authorities  of  the  contracting  states. 

Such  conventional  extension  should  be  deemed  operative  only 
between  the  contracting  parties. 


RIGHT    OF   IMPERIUM  183 

See  the  Anglo-American  treaty  of  October  20,  1818,  those  between  France 
and  Great  Britain  of  August  2,  1839  (arts.  9  and  10),  and  November  11,  1867 
(art.  1),  and  the  treaty  between  France  and  Mexico  of  November  27,  1886,  by 
which  it  was  agreed  to  extend  respectively  the  territorial  sea  to  20  kilometers. 
Compare:  Ortolan,  Regies  internationales  et  diplomatie  de  la  mer,  1864,  livre  II, 
ch.  VIII,  V.  I,  p.  159.  Fradier-Fod6r6,  Droit  inter nat.  public,  v.  II,  §6.33; 
Bonfils,  op.  cit.,  §  492.  Cf.  Oppenheira,  International  law,  v.  I,  2d  ed.,  pp. 
235  et  seq.,  §§  176-197. 

275.  As  regards  bays,  the  distance  of  three  sea  miles  shall  be 
reckoned  from  a  straight  line  drawn  across  the  bay  where  its  shores 
converge  to  a  distance  of  six  marine  miles. 

JUST  LIMITATIONS   OF  THE   RIGHT  OF  DOMINIUM 

276.  The  eminent  domain  which  every  state  has  in  its  territorial 
waters  cannot  be  considered  as  a  right  of  property.  Since  its 
object  is  the  security  and  the  defense  of  the  general  and  individual 
interests  of  its  citizens,  it  must  be  limited  by  its  purpose. 

277.  Every  state  is  bound  to  exercise  its  right  of  domain  over 
territorial  waters  in  such  a  manner  as  not  to  injure  the  rights  of 
vessels  who  make  a  peaceful  and  harmless  use  of  such  waters  for 
the  purposes  of  navigation.  It  is  a  universal  right,  in  times  of 
peace,  freely  to  traverse  territorial  waters  in  order  to  reach  the 
open  sea. 

278.  No  sovereign  has  the  right  to  subject  merchant  vessels 
crossing  territorial  waters  to  the  payment  of  fees,  under  any 
form  whatever,  for  the  right  of  transit  or  navigation,  nor  by  law 
or  regulation  render  transit  oppressive  and  difficult. 

RIGHT   OF   SOVEREIGNTY   OVER   PORTS   AND   ROADSTEADS 

279.  Every  sovereign  exercises  dominion  over  his  seaports. 
He  can,  therefore,  by  law  and  regulation,  regulate  the  police  of 
ports,  anchorage,  the  loading  and  unloading  of  ships  and  the  secur- 
ity and  custody  of  goods.  He  can,  moreover,  require  those  who 
enter  in  order  to  transact  business  to  pay  dues  for  tonnage,  light- 
house, port,  pilotage  and  similar  dues.  Nevertheless,  the  more 
favorable  treatment  granted,  under  existing  treaties,  to  the  ships 
of  certain  countries  must  not  be  considered  as  contrary  to  inter- 
national law. 

280.  It  is  the  privilege  of  the  sovereign  of  a  state  to  declare 


184  INTERNATIONAL   LAW    CODIFIED 

seaports  open  or  closed  to  commerce.  However,  when  they  are 
declared  open,  the  merchant  vessels  of  all  countries  must,  under 
the  guaranties  of  international  law,  be  permitted  to  enter,  subject 
to  the  observance  of  territorial  laws  and  regulations  and  the  obli- 
gation to  pay  the  necessary  fiscal  taxes  and  duties. 

281.  Every  sovereign  may,  for  reasons  of  public  policy,  forbid 
war  vessels  to  enter  the  ports  of  the  state.  When  he  allows  them 
to  enter  port  and  to  remain  in  territorial  waters,  he  may  impose 
on  them  such  conditions  as  he  may  deem  appropriate. 

282.  In  no  case  can  the  sovereign  refuse  entrance  to  ports,  even 
those  closed  to  commerce,  nor  to  roadsteads,  to  vessels  forced  to 
take  refuge  therein  by  stress  of  maritime  disaster  or  any  other  case 
oi  force  majeure. 

It  is  the  duty  of  the  State  to  consider  such  vessels  as  under  the 
protection  of  international  law  so  far  as  concerns  the  ownership 
of  the  vessels  and  cargoes,  to  treat  them  according  to  the  dictates 
of  humanity  and,  saving  the  precautions  which  might  be  deemed 
necessary  to  avoid  and  prevent  imposition,  to  grant  them,  subject 
to  the  observance  of  local  laws  and  regulations,  the  means  to  re- 
pair their  damages  and  to  do  everything  that  may  be  necessary  to 
enable  them  to  proceed  on  their  voyage. 

The  rules  proposed  with  regard  to  ports  are  based  on  the  just  concept  that 
ports  are  part  of  the  pubUc  domain  of  the  State,  a  fact  which  makes  it  neces- 
sary to  admit  the  eminent  domain  of  the  territorial  sovereignty  with  respect 
thereto  and  the  right  of  such  sovereignty  to  subject  their  use  and  enjoyment 
to  certain  conditions,  especially  the  payment  of  certain  dues  to  the  Treasury. 

Roadsteads  are  like  natural  ports;  they  must  be  considered  as  a  dependency 
of  the  territory  and  the  eminent  domain  which  resides  in  the  state  must 
comprise  them.  The  British  Admiralty  sought  to  include  within  the  domain 
of  Great  Britain  wide  expanses  of  sea  enclosed  by  the  British  coasts  which  it 
called  "narrow  seas,"  "King's  Chambers."  But  such  a  claim  is  not  justifiable. 
The  rules  concerning  gulfs  must  be  applied  to  roadsteads  of  considerable 
extent.  In  the  treaty  between  France  and  Great  Britain  of  August  2,  1839, 
relating  to  fishing  in  the  English  Channel,  it  is  provided  in  article  5  that 
bays  less  than  ten  miles  wide  must  be  considered  as  dependencies  of  the 
territory. 

RIGHT  OF   SOVEREIGNTY  OVER  GULFS  AND  LAKES 

283.  Gulfs  should  be  considered  within  the  eminent  domain  of 
the  territorial  sovereign  when  their  width  does  not  exceed  the 
range  of  a  cannon-shot.    Otherwise,  they  must  be  assimilated  to 


RIGHT   OF    IMPERIUM  185 

the  open  sea,  applying  the  rules  governing  the  extent  of  and  juris- 
diction over  territorial  waters. 

The  rule  proposed  is  based  on  the  theory  that  every  state  must  provide  for 
its  safetj^  and  defense.  We  must,  besides,  bear  in  mind  that  the  sea  cannot 
be  considered  as  within  the  domain  of  any  state  because  of  the  impossibility 
of  acquiring  exclusive  possession  of  it.  Now,  this  possession  is  possible  with 
respect  to  gulfs  where  entrance  and  egress  may  be  prevented  by  means  of 
cross  fire  from  the  guns  of  a  battery  on  the  two  opposite  coasts.  On  the  other 
hand,  it  is  natural  that  in  the  absence  of  such  circumstances,  the  gulf  must 
be  assimilated  to  the  open  sea  by  fixing  the  limits  of  territorial  waters  according 
to  existing  customary  law,  or  at  six  miles,  when  that  new  distance  proposed 
shall  have  been  adopted  by  international  convention. 

284.  The  right  of  sovereignty  over  lakes  situated  on  the  bound- 
ary of  two  states  extends,  on  the  part  of  each  riparian  state,  to  the 
middle  of  the  lake. 


RIGHT  OF   SOVEREIGNTY  OVER   STRAITS 

285.  The  right  of  sovereignty  of  the  state  in  possession  of  both 
shores  of  a  strait  should  be  considered  as  limited  to  its  power  to 
patrol  navigation  therein  and  to  do  whatever  is  necessary  for 
the  safety  and  defense  of  the  state. 

286.  No  sovereign,  by  virtue  of  his  power  of  control,  can  subject 
ships  passing  through  a  strait  to  the  payment  of  passage  and 
transit  dues,  or  prevent  the  peaceful  use  of  the  strait.  He  can 
merely  ask  to  be  indemnified  for  the  expenditures  incurred  to 
maintain  the  strait  in  a  condition  of  navigability  and  to  assure  the 
safety  of  commerce. 

Denmark  for  a  long  time  imposed  on  merchant  vessels  crossing  the  Sund 
and  Belt  Straits  on  their  way  to  the  Baltic  Sea,  the  payment  of  passage  dues. 
These  dues,  fixed  and  recognized  for  the  first  time  in  the  treaty  concluded  in 
164.5  between  the  Danish  Government  and  the  States  General  of  the  United 
Provinces  of  the  Netherlands  were  later  admitted  by  other  states,  especially 
by  France  in  the  treaties  of  1GG.3  and  1742.  Subsequently,  as  the  amount  of 
the  dues  thus  collected  by  Denmark  exceeded  considerably  the  expenditures 
of  the  navigation  service  and  as  those  dues  amounted  to  veritable  taxes  upon 
pa.ssagc  at  the  expense  of  international  trade,  just  protests  against  this 
abu.se,  especially  by  the  United  States,  resulted  in  a  convention,  March  14, 
1857,  between  Denmark  on  the  one  hand  and  Austria,  Belgium,  France, 
Great  Britain,  Hanover,  Metiklenburg-Schwerin,  Oldenburg,  the  Netherlands, 
Prussia,  Russia,  Sweden  and  Norway,  the  Hanse  towns  f)f  Lubeck,  Bremen 
and  Hamburg,  on  the  other.  UndcT  this  agreement  the  dues  for  passage  were 
redeernfid  for  the  sum  of  91 ,4.'^4,97.'5  fraiu^s. 

Compare  the  rules  formulated  in  Book  III,  On  the  liberty  oj  straits. 


180  INTERNATIONAL   LAW   CODIFIED 

RIGHT   OF    SOVEREIGNTY   OVER   INLAND    SEAS 

287.  The  right  of  sovereignty  over  inland  seas  is  subject  to  the 
rules  which  apply  to  the  high  sea,  except  for  modifications  estab- 
lished by  international  treaties. 

No  sovereign  can  consider  an  inland  sea  to  be  within  his  domain, 
although  he  possesses  all  the  coasts  that  surround  it  and  the 
strait  by  which  it  communicates  with  the  ocean,  under  the  pre- 
tense of  his  power  to  prevent  access  thereto  with  his  guns. 

While  the  straits  of  the  Bosphorus  and  the  Dardanelles  are  under  the  domain 
of  Turkey,  she  cannot  consider  the  Black  Sea  as  within  her  domain,  even 
when  she  had  possession  of  all  the  coasts  bounding  the  sea. 

See  the  various  phases  relating  to  that  sea  and  the  conventions  signed  to 
regulate  its  navigation  in  Bonfils-Fauchille,  3d  ed.,  §§  499  et  seq.;  see  also  the 
statements  there  in  regard  to  the  Baltic  and  Behring  seas. 

See  also  Oppenheim,  op.  cit.,  v.  I,  p.  603: 

"The  declaration  exchanged  on  May  16,  1907,  between  France  and  Spain, 
on  the  one  hand,  and  on  the  other  hand,  between  Great  Britain  and  Spain, 
concerning  the  territorial  staliLS  quo  in  the  Mediterranean  .  .  .  [and  that] 
concerning  the  maintenance  of  the  territorial  status  quo  in  the  North  Sea, 
signed  at  Berlin  on  April  23,  1908,  by  Great  Britain,  Germany,  Denmark, 
France,  Holland,  and  Sweden  ..."  [and  another,  of  like  date],  signed  at  St. 
Petersburg  by  Germany,  Denmark,  Russia  and  Sweden  "concerning  the 
territorial  status  quo  in  the  Baltic." 

RIGHT   OF   SOVEREIGNTY   OVER   RIVERS 

288.  The  sovereign  of  every  state  has  the  right  of  sovereignty 
and  domain  over  rivers  and  canals  which,  throughout  their  entire 
course,  traverse  the  territory  of  the  state.  He  may,  consequently, 
determine  the  conditions  under  which  foreign  vessels  may  be 
allowed  to  make  use  of  these  waters  for  commercial  purposes. 

289.  The  right  of  sovereignty  and  domain  over  a  river  which 
crosses  several  states,  resides  in  the  state  crossed  by  the  river  over 
all  that  portion  of  its  course  which  passes  through  its  territory. 
This  right  must  always  be  exercised  without  impairing  in  any  way 
the  freedom  of  navigation  and  the  rights  of  riparian  states,  which 
find  themselves  in  natural  community  with  respect  to  the  use  of 
the  waters. 

290.  The  right  of  sovereignty  and  domain  with  regard  to  a  river 

which  separates  two  states  must  be  considered  as  belonging  to  each 

state  up  to  the  middle  of  the  river,  following  the  line  called  thalweg. 

Compare  the  rules  relating  to  navigable  rivers  and  to  territorial  limits  and 
boundaries  in  Book  III. 


RIGHT    OF   IMPERIUM  187 

RIGHT    OF    SOVEREIGNTY    OVER   MOVABLES    IN    THE   TERRITORY 

291.  Everything  actuallj^  in  the  territory  of  the  state,  considered 
in  itself  and  independently  of  the  persons  to  whom  it  belongs, 
must  be  deemed  subject  to  the  right  of  imperium  of  the  territorial 
sovereign. 

292.  The  sovereign  of  the  state  has  the  right  to  regulate  the 
legal  condition  and  possession  of  things  both  personal  and  real,  and 
the  just  limits  to  the  free  exercise  of  the  right  of  property  in  its 
relations  with  general  interests  and  with  the  protection  of  social 
rights  and  of  the  rights  of  third  parties. 

293.  No  right  over  property  in  the  territory  of  the  state  can 
become  effective  except  as  a  result  Of  a  law  of  the  territorial  sov- 
ereign and  in  conformity  with  that  law. 

No  legal  relation  concerning  things  located  in  the  territory 
of  the  state  shall  be  held  effective,  if  the  result  entails  a  deroga- 
tion from  the  laws  of  public  policy  relating  to  property  or  from 
public  municipal  law. 

Even  when  the  right  over  a  thing  located  in  a  country  must  be  held  to  be 
based  on  a  foreign  law,  such  right  may  be  effective  as  jus  ad  rem,  but  the  real 
right  proper,  the  jus  in  re,  from  which  arises  a  real  action,  can  be  acquired 
only  in  conformity  with  the  provisions  of  territorial  law.  In  fact,  the  territory 
with  all  it  contains  must  be  considered  as  the  basis  and  limit  of  sovereignty 
and  of  the  real  jurisdiction  of  any  sovereign. 

See  infra.  Book  III,  Property  belonging  to  private  individuals,  in  its  relation  to 
international  law.  Compare:  Fiore,  Diritto  inter nazionale  priv.,  4th  ed.,  v.  I, 
parte  generale,  cap.  Ill,  p.  100:  Delia  legge  che  deve  regolare  i  diritti  reali; 
Diena,  /  diritti  reali  considerati  nel  Diritto  internazionale  privato,  Torino, 
Unione  Tip.-Editrice  Torinese,  1895. 

294.  No  act  of  execution  upon  things  located  in  the  territory 
of  the  state  can  take  place  either  by  virtue  of  a  foreign  law,  or  of 
a  contract  made  in  a  foreign  country,  or  of  a  judgment  pronounced 
by  a  foreign  court.  It  is  necessary  that  the  acts  of  execution  be 
previously  authorized  by  the  territorial  sovereign  in  conformity 
with  his  municipal  law. 

The  executory  force  of  acts  rests  solely  upon  the  sovereign  power  possessed 
by  the  sovereign  of  the  state  where  the  executory  acts  must  take  place.  It  is, 
In  fact,  by  reason  of  the  order  given  in  the  name  of  the  sovereign  to  his  public 
officers  that  the  latter  may  carry  out  the  execution.  It  is  evident,  therefore, 
that,  as  the  right  of  imperium  belongs  exclusively  to  the  territorial  sovereign, 
the  exercise  of  imperative  power  on  the  part  of  a  foreign  sovereign  cannot 
be  admitted. 


TITLE  XI 
RIGHT  OF  JURISDICTION 

JURISDICTION  AS  A   RIGHT  OF  THE   SOVEREIGN 

295.  Jurisdiction  which,  by  international  law,  belongs  to  the 
sovereign  of  each  state,  consists  in  the  faculty  to  exercise  the  judi- 
cial power  and  to  submit  to  the  courts  legally  established  by  him 
differences  between  persons  relating  to  their  reciprocal  rights  and 
obligations,  to  the  exercise  of  their  rights  over  things,  and  to  ques- 
tions of  all  kinds  which  must  be  referred  to  the  decision  of  the 
competent  judges. 

In  order  to  distinguish  jurisdiction  as  a  right  of  the  state,  from  jurisdiction 
and  competence  as  powers  assigned  to  judges,  compare  rules  206-208. 

JURISDICTION   OP   COURTS   IN    CRIMINAL   MATTERS 

296.  Jurisdiction  of  courts  in  criminal  matters  must  be  con- 
sidered as  based  on  criminal  law,  which  has,  in  principle,  an  im- 
personal and  absolute  territorial  authoritJ^ 

Whoever,  in  the  territory  of  the  state  or  in  places  assimilated 
to  it,  commits  an  offense  under  the  law  must  be  indicted  and  pun- 
ished by  a  sentence  of  a  competent  judge. 

JURISDICTION   EXERCISED    BY   THE    COURTS    OVER    GUILTY    PERSONS 

When,  however,  the  author  of  an  offense  committed  on  the 
territory  of  the  state  happens  to  be  a  foreigner  who  has  already 
been  tried  by  the  courts  of  his  country,  it  should  be  considered  in 
accordance  with  the  principles  of  equity  and  international  justice, 
when  necessary  to  prosecute  him,  to  take  into  consideration 
the  penalty  already  pronounced  by  the  foreign  courts. 

The  jurisdiction  of  the  courts  of  the  state  of  the  place  where  the  offense 
was  committed  cannot  as  a  rule  be  denied.  But  if  the  concurrence  of  the 
territorial  and  extraterritorial  jurisdictions  is  admitted,  as  is  done  in  certain 

188 


RIGHT   OF   JURISDICTION  189 

cases,  it  is  necessary  for  the  legislature  of  each  country  to  determine,  in  ac- 
cordance with  just  principles,  when  the  prosecution  should  be  resumed  and 
in  what  measure  account  should  be  taken  of  the  penalty  already  inflicted  and 
suffered.  Compare:  Fiore,  Effetli  internazionali  delle  sentenze  penali,  materia 
penale,  Turin,  Loescher,  1877,  ch.  Ill,  and  Droit  penal  intern.,  translated  by 
Charles  Antoine,  Paris,  1880. 


EXTRATERRITORIAL  AUTHORITY  OF  CRIMINAL  LAW  AND  COMPETENT 

COURT 

297.  Criminal  law  can  have  extraterritorial  authority  only  when 
the  violation  of  the  right  protected  by  the  law  is  the  result  of  an 
offense  committed  in  a  foreign  country. 

In  such  case,  the  right  of  the  sovereign  of  the  state  to  bring  the 
offender  before  his  courts  and  to  punish  him  in  accordance  with 
his  laws  must  be  admitted. 

It  is  important  not  to  confuse  the  extraterritorial  authority  of  criminal  law 
with  the  institution  of  a  criminal  action,  which  is  the  immediate  consequence 
and  effect  of  that  law.  The  extension  of  the  authority  of  criminal  law  to 
offenses  committed  abroad  which  violate  certain  rights  cannot  be  considered 
contrary  to  the  principles  of  international  law  and  to  the  reciprocal  inde- 
pendence of  states.  Such  a  principle  would  certainly  not  justify  the  institu- 
tion of  a  criminal  action  in  a  foreign  country,  but  only  the  jurisdiction  of  the 
courts  of  the  state  with  respect  to  the  offender,  with  the  power  to  pronounce 
against  him  the  penalties  provided  for  the  legal  protection  of  the  right  violated. 

Compare:  Fiore,  Effelli  internazionali  delle  sentenze  penali  e  della  estradizione, 
ch.  II:  Della  giurisdizione  penale  relativamente  ai  reati  commessi  all'estero,  n.  12 
et  seq.;  and  Traite  du  Droit  penal  international,  translated  by  Charles  Antoine, 
V.  I:  Du  droit  de  repriiner  les  delits  commis  hors  du  territoire  de  I'Etat,  n.  43  et 
seq.,  Paris,  1880. 

298.  Extraterritorial  authority  may  be  assigned  to  criminal  law 
with  regard  to  the  following  offenses: 

a.  Offenses  against  the  safety  of  the  state  and  public  credit; 

b.  Offenses  against  property  or  persons,  when  the  criminal  has 
gone  to  a  foreign  country  where  the  offense  is  not  punished  in 
order  to  perpetrate  it  in  fraud  of  the  law  of  the  original  coun- 
try which  declares  such  act  to  be  punishable. 

c.  Receiving  stolen  goods,  when  the  objects  stolen  in  the  state 
have  been  fraudulently  carried  into  the  territory  of  another 
state ; 

d.  Complicity  on  the  part  of  an  individual  living  abroad,  who 
has  by  order,  advice  or  inducements  led  the  offender  to  com- 
mit the  offense  in  the  state. 


190  INTERNATIONAL   LAW   CODIFIED 

299.  Every  state  has  criminal  jurisdiction  over  any  act  con- 
sidered an  offense  according  to  international  law. 

Such  offenses  are:  f 

a.  Piracy  and  any  act  relating  thereto; 

h.  The  destruction  or  injury  of  submarine  cables  or  of  any  por- 
tion of  the  apparatus  belonging  thereto ; 

c.  The  destruction  or  injury  of  an  international  railroad,  6r  of 
canals  or  public  works  intended  for  the  common  use  of  states, 
committed  willfully  in  time  of  peace  or  by  an  unauthorized 
person  in  time  of  war. 


PIRACY   IN   RELATION   TO    CRIMINAL   JURISDICTION 

300.  By  piracy  we  understand  any  violent  act  committed  on 
the  high  sea  for  the  purpose  of  robbery  or  depredation,  by  a  ship 
not  provided  with  a  license  or  letters  of  marque  emanating  from  a 
recognized  government,  and  when  the  offense  is  directed  indis- 
criminately against  the  ships  of  any  country. 

Compare:  Oppenheim,  International  law,  v.  I,  §§  275,  et  seq. 

301.  We  cannot  characterize  as  piracy  the  acts  of  a  ship  which 
has  been  commissioned  by  a  government  to  commit  acts  of  vio- 
lence or  depredation  against  the  ships  of  a  certain  country,  even 
though  the  captain  of  the  ship  may  have  exceeded  the  terms  of  his 
commission.  Nevertheless,  the  author  of  such  acts  should  be  held 
responsible,  even  criminally,  for  having  exceeded  the  limits  of  his 
commission,  and  in  like  manner,  the  government  which  commis- 
sioned him  must  always  be  considered  responsible. 

302.  When,  on  board  a  ship  carrying  the  flag  of  a  recognized 
nation,  mutinous  members  of  the  crew  commit  acts  of  plunder, 
depredation,  murder  and  assault,  such  facts  cannot  be  charac- 
terized as  acts  of  piracy  and  the  ship  must  remain  subject  to  the 
jurisdiction  of  the  state  whose  flag  she  flies.  When,  however,  the 
mutineers,  having  assumed  command  of  the  ship,  have  broken  off 
all  relations  with  the  home  state  and  have  ceased  fl3nng  its  flag,  the 
acts  committed  by  them  would  be  deemed  acts  of  piracy  accord- 
ing to  rule  300. 


See  Phillimore,  v.  I,  357,  stating  a  case  which  took  place  in  Chilean  waters 
and  to  which  the  present  rule  may  apply. 


f 


a 
I 


RIGHT   OF   JURISDICTION  191 

303.  International  criminal  jurisdiction  for  the  crime  of  piracy 
can  be  admitted  only  when  the  act  charged  meets  all  the  condi- 
tions necessary  to  piracy  under  the  principles  of  international  law. 

The  municipal  law  of  a  state  which  denominates  as  piracy 
certain  acts  not  considered  to  be  such  by  international  law,  can- 
not be  applied  against  aliens  to  assign  to  those  acts  a  piratical 
character  and  justify  the  jurisdiction  of  the  state  which  enacted 
the  law. 

Piracy  in  international  law  must  not  be  confused  with  the  crime  of  piracy 
so  quaUfied  under  the  municipal  law  of  a  state.  Thus,  for  example,  under 
British  law,  any  British  subject  is  considered  a  pirate  who,  in  time  of  war,  aids 
or  assists  at  sea  the  enemies  of  the  king  or  who  transports  slaves  on  the  high 
seas.  (See  Stephens,  Criminal  Law,  arts.  104-117.)  It  goes  without  saying 
that  under  this  law,  only  British  subjects  who  violate  the  laws  of  their  sover- 
eign can  be  sentenced  for  piracy. 

Compare:  Oppenheim,  International  law,  §  280. 

304.  The  pirate  ship,  whether  or  not  she  flies  the  flag  of  a  state  or 
keeps  log-books,  is  subject  to  the  jurisdiction  of  any  state  that  has 
her  in  its  power. 

305.  Whoever  possesses  proof  that  a  ship  is  guilty  of  piracy,  or 
has  serious  reasons  for  suspecting  her,  has  the  right  to  seize  her, 
but  must  conduct  her  into  the  port  of  a  state  for  trial. 

If  the  acts  of  piracy  were  committed  in  the  territorial  waters  of 
a  state,  the  jurisdiction  of  that  state  should  be  recognized  in  pref- 
erence to  any  other. 

CRIMINAL   JURISDICTION   OVER   TERRITORIAL   WATERS 

306.  It  is  incumbent  upon  states  to  determine  in  common  ac- 
cord the  extent  of  territorial  waters  with  respect  to  criminal  juris- 
diction. 

In  principle,  the  complete  assimilation  of  territorial  waters  to 
the  landed  territory,  from  the  point  of  view  of  the  authority  of 
criminal  law  over  offenses  committed  in  the  said  waters  and  the 
resulting  criminal  jurisdiction,  should  not  be  admitted. 

307.  In  the  al)sence  of  an  international  agreement,  every  state 
can  by  law  establish  rules  for  the  exercise  of  criminal  jurisdiction 
over  offenses  committed  within  its  territorial  waters. 

In  Great  Britain,  this  matter  is  regulated  by  a  law  of  1878  (An  act  to  regulate 
the  law  relating  to  the  trial  of  offensea  committed  orb  the  sea  within  a  certain  dis- 


192  INTERNATIONAL   LAW   CODIFIED 

tance  of  Her  Majesty's  dominions,  41  and  42  Vict.,  c.  73).  Article  7  of  this 
law  reads:  "And  for  the  purpose  of  any  offense  declared  by  this  Act  to  be 
within  the  jurisdiction  of  the  Admiral,  any  part  of  the  open  sea  within  one 
marine  league  of  the  coast  measured  from  low  water  mark  shall  be  deemed 
to  be  open  sea  within  the  territorial  waters  of  Her  Majesty's  dominions." 

This  law  was  enacted  following  the  discussions  arising  out  of  the  collision 
owing  to  negligent  navigation  of  the  German  ship  Franconia,  at  a  distance  of 
about  three  sea  miles  off  the  English  coast.  The  killing  of  a  sailor  having  been 
proved  and  charged  against  the  captain  of  the  vessel,  the  claim  was  made 
that  the  English  law  was  applicable  and  that  the  High  Court  of  Admiralty 
had  jurisdiction  of  the  case.  At  that  time,  that  is  in  1877,  no  statute  relating 
to  this  matter  existed  in  Great  Britain  and  the  discus.sions  involved  the  gen- 
eral principles  of  law.  Phillimore,  a  judge  of  the  High  Court,  held,  with  much 
reason,  that  from  the  point  of  view  of  criminal  jurisdiction,  territorial  waters 
could  not  be  assimilated  in  all  matters  to  the  landed  territory.  [See  Regina  v. 
Keyn,  2  Ex.  D.  63.] 

At  the  time  of  the  debates  on  the  law  of  1878,  the  principle  which  it  was 
intended  to  sanction  was  bitterly  opposed  both  in  the  House  of  Lords  and  in 
the  House  of  Commons.  In  the  latter,  the  law  was  opposed  by  Sir  George 
Bowyer.  Phillimore  persistently  held  that  the  British  Parliament  could  not 
establish  a  criminal  jurisdiction  in  opposition  to  international  law,  and  that 
was  the  opinion  held  by  the  Lord  Chief  Justice. 

308.  It  must  always  be  considered  in  conformity  with  the  most 
just  principles  of  international  law  to  admit  the  criminal  jurisdic- 
tion of  the  state  over  offenses  committed  in  territorial  waters  within 
a  mile  from  the  coast  measured  from  low  water  mark,  and  beyond 
that  limit,  to  assimilate  territorial  waters  to  the  high  sea  from  the 
point  of  view  of  criminal  jurisdiction. 

This  rule  is  based  on  the  idea  and  ultimate  purpose  of  the  penalty.  The 
political  alarm  and  damage  which  justify  the  penal  sanctions  necessary  for 
the  legal  protection  of  violated  rights,  cannot  arise  from  acts  which  are  com- 
mitted at  a  great  enough  distance  from  the  coast  to  exclude  any  idea  of  threat- 
ening the  public  safety  of  the  territory  of  the  state. 


CRIMINAL   JURISDICTION   OVER   MERCHANT    VESSELS 

309.  Criminal  jurisdiction  over  merchant  vessels  for  offenses 
committed  thereon,  must  be  assigned  to  the  state  which  gives  the 
vessel  its  nationality.  This  jurisdiction  holds,  even  when  the  ship 
is  in  foreign  territorial  waters  and  ports,  provided,  however,  that 
the  offenses  committed  on  board  have  no  exterior  consequences 
and  do  not  affect  the  patrol  of  territorial  waters  or  territorial 
public  order. 

310.  The  territorial  sovereign  has  criminal  jurisdiction  whenever 


RIGHT   OF  JURISDICTION  193 

the  offenses,  even  if  committed  on  board  a  foreign  vessel,  have  or 
may  have  external  consequences. 

This  is  illustrated  principally  in  the  following  cases: 

a.  When  an  offense,  although  committed  on  board  among 
members  of  the  crew,  may  endanger  the  public  safety  or 
tranquillity; 

b.  When  the  offense  was  initiated  outside  the  ship  and  termi- 
nated on  board; 

c.  When  the  commander  of  the  vessel  is  unable  to  prevent  or 
punish  the  offense  and  requires  the  intervention  of  the  local 
authorities. 

311.  With  regard  to  serious  offenses  against  "common"  law 
which  are  committed  on  board  without  having  any  exterior  conse- 
quences, the  territorial  state  may  be  granted  the  right  to  intervene 
in  order  to  proceed  with  the  necessary  preliminary  examinations  to 
preserve  the  proofs  and  the  corpus  delicti,  reserving  the  surrender 
of  the  guiltj'  person  to  the  courts  of  the  state  to  which  the  vessel 
belongs,  in  order  that  he  may  be  tried  in  conformity  with  the  law 
of  that  state. 

The  French  Court  of  Cassation  said  in  the  Jally  case:  "In  view  of  the  fact 
that  merchant  vessels,  entering  the  port  of  a  nation  other  than  that  to  which 
they  belong,  cannot  be  subjected  to  the  territorial  jurisdiction  whenever  the 
interests  of  the  territorial  state  are  involved,  without  danger  to  the  public 
order  and  dignity  of  the  Government.  .  .  ."  (Cass.  Feb.  25,  1859,  Journal 
du  Palais,  1859,  420.)  See  the  comments  of  the  reporter  and  the  note.  Cf.  the 
decisions  of  American  courts  in  Fiore:  Dirillo  intern,  pubblico,  4th  ed.,  v.  I, 
§§  513  et  seq.  and  Calvo,  Droit  intern.,  §§  462  et  seq.  [see  Wildenhuis'  case,  120 
U.  S.  1]. 

312.  Before  undertaking  to  assume  jurisdiction  of  foreign  vessels 
in  territorial  waters,  the  local  authorities  must  advise  the  consul 
or  consular  representative  of  the  state  to  which  the  vessel  belongs 
and  undertake  no  act  without  his  intervention,  whenever  con- 
veniently  possible. 

This  rule  is  based  on  the  general  principle  of  international  law  that  consuls 
are  the  natural  protectors  of  the  citizens  of  the  state  which  has  appointed 
them  and  of  their  commerce.  Article  12  of  the  consular  convention  between 
Italy  and  France  reads  as  follows:  "It  is  agreed  that  judicial  officers  and  cus- 
toms officers  and  employees  shall  not  conduct  examinations,  visit  or  search  on 
board  ve.s.seLs  without  being  accompanied  by  the  Consul  or  Vice-Consul  of  the 
nation  to  which  the  vessel  belongs;  they  shall  also  give  opportune  notice  to 
said  consular  officers  in  order  that  they  may  be  present  when  captains  or 
members  of  the  crew  of  vessels  make  depositions  or  declarations  before  the 


194  INTERNATIONAL  LAW  CODIFIED 

courts  and  local  administrative  authorities,  in  order  thus  to  avoid  any  error 
or  misinterpretation  which  might  interfere  with  the  proper  administration 
of  justice. 

The  citation  which  for  this  purpose  shall  be  served  upon  the  Consuls  or 
Vice-Consuls  shall  indicate  a  certain  day  and  hour,  and  if  the  Consuls  or  Vice- 
Consuls  fail  to  appear,  personally  or  by  a  representative,  the  proceedings 
shall  continue  in  their  absence." 


CRIMINAL  JURISDICTION   WITH  REGARD  TO   WAR   VESSELS 

313.  A  war  vessel  is  one  of  any  form  and  size  authorized  under 
the  law  of  the  state  to  which  she  belongs  to  fly  the  military  flag 
and  placed  under  command  of  an  officer  of  the  navy. 

314.  The  territorial  sovereign  cannot  exercise  jurisdiction  over 
a  war  vessel  which,  with  its  consent,  has  entered  territorial  waters; 
nor  can  it  interfere  with  acts  which  occur  on  board  the  vessel,  even 
when  very  serious  offenses  are  committed  on  board  by  members  of 
the  crew. 

The  state  has  the  right  merely  to  require  the  observance  of  the 
conditions  under  which  it  has  granted  permission  to  enter  its 
territorial  waters. 

315.  The  commanding  officer  of  a  foreign  war  vessel  which  en- 
ters territorial  waters  to  perform  an  act  violative  of  the  rights  of 
the  state,  under  the  orders  of  his  government,  shall  not  be  per- 
sonally subject  to  criminal  jurisdiction  therefor. 

The  territorial  sovereign  must  consider  the  state  to  which  the 
vessel  belongs  as  responsible  and  may  do  everything  necessary  for 
the  national  defense  and  protection  of  its  rights.  It  may,  accord- 
ingly, treat  the  vessel  as  an  enemy  vessel. 

316.  A  foreign  war  vessel  which,  without  commission  or  tacit 
authorization  of  her  government,  has  entered  territorial  waters 
in  order  to  perform  acts  in  violation  of  the  rights  of  the  state,  may 
be  subjected  to  the  jurisdiction  of  the  territorial  sovereign.  The 
latter  has  the  right  to  prosecute  the  offenders,  or  to  demand  that 
they  be  punished  by  the  state  to  which  the  vessel  belongs  and  may 
consider  the  vessel  as  a  material  instrument  and  treat  her  as  an 
enemy.  That  sovereign  cannot,  however,  hold  the  state  responsi- 
ble by  applying  to  it  the  laws  of  war,  when  it  is  proved  that  the 
foreign  government  was  not  aware  of  the  criminal  designs  of 
the  ship's  commander  or  had  done  its  best  to  prevent  their 
execution. 


RIGHT   OF  JURISDICTION  195 

See  the  decisions  of  the  Court  of  Aix,  of  August  6,  1832,  and  of  the  Frencii 
Court  of  Cassation,  of  September  7,  1832,  in  the  celebrated  case  of  the  ship 
Carlo  Alberto,  and  the  important  speech  of  Tupin  for  the  prosecution  in 
Journal  du  Palais,  1832,  p.  1457.  See  also  the  diplomatic  correspondence  be- 
tween the  government  of  Sardinia  and  the  two  Sicilies  in  the  well  known  case 
of  the  ship  Cagliari  in  June,  1857,  and  Fiore,  Droit  penal  international,  v.  I, 
no.  15. 

317.  The  government  can  subject  foreign  war  vessels  which 
enter  the  territorial  waters  of  the  state  to  the  laws  governing 
health,  harbor  rules  and  the  rules  of  navigation. 

318.  The  territorial  sovereign  always  has  the  right  to  exercise 
criminal  jurisdiction  over  the  crew  of  a  foreign  war  vessel  for 
offenses  committed  by  them  on  land,  provided  however,  that  the 
local  authorities  succeed  in  arresting  the  guilty  persons  before  their 
return  on  board  the  vessel  or  the  ship's  boat. 

So  long  as  the  person  accused  of  an  offense  against  "common" 
law,  although  a  member  of  the  crew  of  a  foreign  war  vessel,  is  on 
the  territory  of  the  state,  the  right  of  the  territorial  state  to  arrest 
such  person  in  order  to  arraign  him  before  its  courts  and  to  punish 
him  in  conformity  with  "common"  law  cannot  be  limited. 

Compare  the  decision  of  the  French  Court  of  Cassation  February  29,  1868, 
in  the  case  of  the  sailor  Der,  of  the  British  sloop  of  war  Pearl  and  the  important 
speech  of  the  Public  Pro.secutor  in  the  Journal  du  Palais,  1868,  p.  905. 

319.  The  territorial  state  may  exercise  criminal  jurisdiction 
over  a  foreign  war  vessel  in  its  territorial  waters  whenever  there 
occur  on  board  offenses  with  respect  to  which  the  criminal  law 
is  assigned  an  extraterritorial  authority,  and  it  is  consequently 
urgent  to  arrest  the  offender  and  to  prosecute  the  ship's  commander 
so  as  to  make  sure  of  having  him. 

The  exercise  of  jurisdiction  must  likewise  be  admitted  when  the 
commander  of  the  foreign  vessel  himself  requests  the  intervention 
of  the  local  authorities;  or  when  the  commander  has  lost  his  au- 
thority, owing  to  a  mutiny  of  the  crew  which  may  greatly  endanger 
the  public  peace  and  security. 

Our  rule  tends  to  maintain  in  its  legal  sphere  the  privilege  of  extraterrito- 
riality recognized  by  international  law  in  favor  of  war  vessels.  No  other  juris- 
diction can,  in  princii)lc,  be  admitted  over  such  a  vessel,  which  is  a  floating 
fortress,  exce[)t  that  which  belongs  to  the  naval  commander  and  which  he 
exercises  by  virtue  of  the  laws  of  the  state  to  which  the  vessel  belongs.  This 
commander  represents  the  .sovereign  of  his  state,  which  conseciuent-ly  excludes 
any  act  of  sovereignty  by  a  foreign  government.     Nevertheless,  it  may  be 


196  INTERNATIONAL   LAW   CODIFIED 

found  necessary  to  limit  the  privilege  of  extraterritoriality  by  its  very  purpose. 
Let  us  suppose  that  the  commander  of  a  war  vessel  in  territorial  waters  should 
take  advantage  of  his  situation  to  commit  grave  offenses  on  board,  such  as  the 
falsification  of  the  state's  seals,  money  or  bonds  of  its  public  debt,  or  that  the 
war  vessel  should  become  a  refuge  where  "common"  law  offenses  are  com- 
mitted (excitation  to  revolt  by  means  of  publications  secretly  printed).  It 
would  be  impossible  in  such  cases  to  deny  the  sovereignty  of  the  state  thus 
offended  the  right  to  repress  such  offenses  and  to  punish  their  authors. 

The  same  rule  would  govern  if  the  commander  had  lost  his  authority;  or 
if  a  mutiny  had  brolcen  out  rendering  the  commander  powerless  to  assert 
his  authority  and  the  war  vessel  were  therefore  in  a  state  of  anarchy. 

320.  In  the  cases  covered  by  the  foregoing  rule,  the  state  to 
which  the  vessel  belongs  may  request  that  the  offenders,  who  are 
in  the  custody  of  the  territorial  authorities,  be  delivered  to  it  for 
trial  by  its  own  courts;  but  it  must  request  and  obtain  their  ex- 
tradition. 

JURISDICTION   OVER   ISLANDS 

321.  Criminal  jurisdiction  of  offenses  committed  on  islands 
which  do  not  belong  to  any  state  should  be  assigned  to  the  state 
of  which  the  offender  is  a  citizen. 


ORDINARY    JURISDICTION   OVER   MERCHANT   VESSELS 

322.  Jurisdiction  over  foreign  merchant  vessels  which  enter 
territorial  waters  or  ports  must  be  assigned,  in  principle,  to  the 
sovereign  of  the  state  to  which  such  waters  or  ports  belong. 

It  is  incumbent  upon  foreign  merchant  vessels  to  recognize 
the  authority  of  the  police  laws  and  all  regulations  there  in  force 
relating  to: 

a.  The  entrance  and  departure  of  vessels; 

b.  Anchorages  and  moorings; 

c.  The  embarkation  and  landing  of  passengers; 

d.  The  loading  and  unloading  and  storing  of  goods  and  ballast; 

e.  The  use  of  signal  lights  and  precautions  against  fire; 

/.  Everything  relating  to  the  police  and  security  of  the  port  or 
roadstead  and  its  dependencies. 

323.  It  is  incumbent  upon  the  territorial  sovereign  to  extend 
equal  treatment  in  the  application  of  the  relevant  laws  and  regu- 
lations, to  foreign  vessels  entering  an  open  port,  subject  to  excep- 
tions which  may  arise  from  treaties. 


RIGHT  OF  JURISDICTION  197 

That  sovereign,  moreover,  must  allow  the  authorities  of  the 
countrj^  to  which  the  vessel  belongs  to  exercise  their  powers  with 
respect  to  the  vessel  in  conformity  with  applicable  treaties  and 
"common"  law. 

This  rule  refers  to  the  exercise  of  the  powers  of  consuls  and  consular  agents 
with  respect  to  the  merchant  vessels  of  their  country.  Under  the  Italian 
consular  law  (art.  26),  Italian  consuls  may  inflict  on  Italian  seamen  disci- 
plinary punishment  for  breaches  of  discipline  committed  by  them  on  board; 
they  have,  besides,  other  duties  under  Italian  laws  and  regulations. 

324.  The  laws  of  the  state  to  which  the  ship  belongs  must  govern 
her  legal  status  everywhere  as  an  object  of  property,  with  regard 
to  her  valid  transfer,  the  obligations  and  responsibility  of  her 
owners,  and  the  relations  between  her  commander  and  crew,  ex- 
cept for  the  rules  of  private  international  law  which  must  govern 
private  relations  and  the  rights  acquired  over  the  ship  by  creditors 
in  the  country  where  she  may  happen  to  be. 

The  foregoing  rules  are  based  on  the  principles  expounded  by  writers  and 
on  the  decisions  of' the  courts,  as  more  fully  set  forth  in  the  following  works: 

Fiore,  Trattato  di  diritto  internaz.  pubblico,  4th  ed.,  1905,  v.  II,  §§  984  et  seq., 
and  2d  ed.  translated  into  French  by  Charles  Antoine,  Paris,  1885,  §§  535 
et  seq.;  La  nave  commerciale  nei  suoi  rapporti  col  Diritto  inter nazionale,  in  the 
periodical  La  Legge,  1882  (theoretical  and  practical  studies),  p.  317;  4th  ed.  of 
the  aforesaid  work:  Trattato  di  Diritto  internaz.  pubblico,  v.  I,  §§  513-520,  and 
V.  II,  §§  984  et  seq.;  Calvo,  Droit  internat.,  v.  I,  §§  459  et  seq. 

At  the  Congress  of  Antwerp  of  1885,  the  following  rule  was  adopted:  "The 
powers  of  the  captain  to  provide  for  the  pressing  needs  of  the  vessel,  to  mort- 
gage or  sell  her,  or  contract  a  bottomry  loan  are  determined  by  the  law  of  the 
flag,  except  that,  in  matters  of  form,  he  must  be  governed  either  by  the  law 
of  the  flag  or  the  law  of  the  port  where  the  transactions  are  undertaken." 

325.  The  powers  of  the  captain,  both  with  respect  to  the  persons 
on  board  the  vessel  and  to  the  vessel  herself  and  the  measures  and 
acts  which  he  may  prescribe  or  order  for  purposes  of  navigation, 
must  be  determined  by  the  national  law  of  the  vessel;  subject, 
however,  in  matters  relating  to  the  exercise  of  such  powers  in 
territorial  waters,  to  compliance  with  the  special  provisions  of  the 
local  law. 

Compare  the  opinion  of  the  French  Council  of  State  of  November  20,  1806, 
with  respect  to  the  offenses  committed  on  the  American  ships  the  Newton 
and  the  Sally,  and  Vincent,  Dictionnaire  de  droit  international  prive,  v.  I,  1887- 
1889,  word  Navire,  p.  616. 

326.  All  disputes  of  a  private  nature  which  may  arise  between 
the  captain,  members  of  the  crew  and  persons  not  connected  with 


198  INTERNATIONAL  LAW   CODIFIED 

the  vessel,  are  within  the  jurisdiction  of  the  territorial  state  or 
of  the  state  to  which  the  vessel  belongs,  according  to  the  prin- 
ciples of  ''common  law,"  and  all  questions  relating  to  the  pay- 
ment of  dues,  taxes  and  duties  owed  by  the  foreign  vessel,  are 
to  be  settled  by  the  territorial  jurisdiction  in  conformity  with  the 
rules  of  "common  law"  in  force  in  the  country  where  the  vessel 
is  located. 

JURISDICTION    RELATING   TO   MAIL   STEAMERS 

327.  Vessels  engaged  in  the  postal  service,  whether  they  belong 
to  the  state  or  to  a  private  concern,  must  be  considered  under  the 
protection  of  international  law  with  respect  to  all  matters  con- 
cerning the  postal  service. 

Jurisdiction  over  mail  steamers  must  be  governed  by  the  rules 
established  by  treaties.  In  the  absence  of  treaties,  it  must  be 
exercised  within  just  limits  and  with  the  restrictions  which,  under 
"common"  law,  must  be  considered  as  inherent  in  the  service  and 
in  the  international  interests  likely  to  suffer  from  a  lack  of  regu- 
larity in  the  mails. 

328.  It  should  be  deemed  more  conformable  to  "common"  law 
to  assimilate  mail  steamers  to  war  vessels  than  to  merchant  vessels 
and  to  refrain  from  any  assumption  of  jurisdiction  over  or  police 
measure  against  them  which  is  not  based  upon  urgent  necessity. 

329.  A  govermnent  which,  without  grave  and  urgent  reasons, 
delays  the  sailing  of  a  mail  steamer,  may  be  held  liable  for  the 
actual  damages  incurred  through  the  delay  by  private  individuals. 

In  several  conventions,  mail  steamers  are  assimilated  to  war  vessels. 

In  the  postal  convention  between  Italy  and  France,  of  March  3,  1869,  the 
following  provision  may  be  found  (art.  6):  "When  mail  steamers  employed  by 
the  postal  authorities  of  France  or  Italy  for  the  carriage  of  mails  in  the  Medi- 
terranean are  national  vessels  owned  by  the  state  or  vessels  chartered  or  sub- 
ventioned  by  the  state,  they  shall  be  considered  and  received  as  war  vessels 
in  the  respective  ports  of  the  two  countries  to  which  they  ply  regularly  or  oc- 
casionally, and  they  shall  enjoy  therein  the  honors  and  privileges  of  war 
vessels. 

"These  mail  steamers  shall  be  exempt  in  the  said  ports,  both  in  entrance 
and  departure,  from  all  tonnage,  navigation  and  port  dues,  unless  they  load 
or  discharge  cargo  in  which  case  they  shall  pay  the  same  dues  as  national 
vessels.  They  shall,  in  no  case,  be  deviated  from  their  destination,  nor  be 
subject  to  detention,  embargo,  arrest  or  restraint  of  princes." 

330.  No  mail  steamer  can  claim  the  attentions  and  privileges 


RIGHT  OF  JURISDICTION  199 

due  her  by  reason  of  her  postal  character,  when  she  has  abused  her 
position  to  evade  or  violate  the  laws  and  regulations  in  force  in  the 
foreign  port  which  she  has  entered  as  a  mail  steamer. 

Such  would  be  the  case  of  a  mail  boat  which  had  attempted 
smuggling;  or  had  received  on  board,  in  territorial  waters,  offenders, 
fugitives  from  justice;  or  which,  after  it  had  received  them  on  board 
at  some  other  point,  should  attempt  to  land  them  in  the  territorial 
waters  of  the  state;  or  if  it  had  in  any  other  way  abused  its  posi- 
tion to  violate  the  customs,  or  criminal  or  police  regulations. 

In  such  cases,  the  local  authorities  who  contemplate  assuming 
jurisdiction  over  a  foreign  mail  steamer,  must  advise  the  consul  of 
the  state  to  which  such  vessel  belongs  and  invite  him  to  be  present. 

331.  It  is  incumbent  on  every  government  to  compel  the  mail 
steamers  of  the  state  entering  foreign  territorial  waters  to  observe 
the  laws  and  regulations  enacted  by  the  territorial  sovereign,  and 
to  refrain  from  protecting  mail  steamers  which  violate  or  attempt 
to  violate  them,  and  to  file  no  unjustified  claim  when  as  a  result 
of  the  violation  of  such  laws  and  regulations,  the  steamers  cease 
to  enjoy  the  privileges  guaranteed  them. 

JURISDICTION  OVER   FOREIGN  SOVEREIGNS 

332.  Foreign  sovereigns  who,  as  such,  are  in  the  territory  of  a 
state,  cannot,  as  such,  be  personally  subjected  to  its  jurisdiction. 

If,  however,  sovereigns  should  abuse  their  position  to  foment 
disorder,  or  to  attack  the  security  of  the  state,  they  may  be  forced 
to  leave  the  territory  and  if  they  commit  hostile  acts  of  exceptional 
gravity,  may  be  treated  as  prisoners  of  war. 

The  principle  of  extraterritoriality  is  opposed  to  subjecting  to  the  criminal 
jurisdiction  of  the  state  foreign  sovereigns,  transiently  resident,  who  may 
violate  the  local  laws.  Nevertheless,  the  injured  state  has  the  right  not  only 
to  prevent,  if  need  be  by  force,  a  criminal  act,  but  even,  if  it  has  been  accom- 
plished, to  seize  the  offender  and  to  hold  him  until  reparation  or  indemnity 
has  been  obtained.  It  may  even  answer  an  attack  upon  its  existence  and 
integrity  by  a  declaration  of  war  (Heffter,  Droit  international,  §  102). 

333.  A  sovereign  who,  in  a  foreign  country,  undertakes  civil  or 
commercial  acts  which,  by  their  nature,  cannot  be  considered  as 
political  acts,  but  rather  as  private  acts,  may  be  subject  to  the 
local  jurisdiction  according  to  the  rules  which  govern  the  exercise 
of  jurisdiction  with  respect  to  a  sovereign  in  matters  of  private  law. 


200  INTERNATIONAL   LAW   CODIFIED 

The  following  may  be  considered  as  coming  within  this  rule: 

a.  The  case  of  a  sovereign  who  has  acquired  realty  in  a  foreign 
country; 

h.  The  case  of  a  sovereign  who  becomes  a  manager  of  public 
utilities  or  undertakes  commercial  acts  (e.  g.,  the  manage- 
ment of  a  railroad,  chartering  of  a  ship  for  carriage  of 
freight,  etc.) 

334.  We  ma}'^  consider  as  subject  to  the  state's  jurisdiction 
a  foreign  sovereign  who  voluntarily  submits  to  it. 

The  following  cases  may  be  considered  as  coming  within  this 
rule: 

a.  The  case  of  a  sovereign  who  has  enlisted  in  the  army  of  a 
foreign  state; 

6.  The  case  of  a  sovereign  who  has  commenced  an  action 
as  plaintiff,  without  appointing  an  attorney-in-fact  to 
represent  him  and  to  answer  the  counterclaims  of  the  de- 
fendant. 

The  rules  proposed  are  based  on  the  just  principle  that  transactions  of 
private  law  and  the  relations  which  arise  therefrom,  cannot  materially  differ 
according  to  the  status  of  the  persons  between  whom  such  transactions  take 
place.  Whenever  the  sovereignty  cannot  be  considered  to  be  actually  involved, 
the  fundamental  reason  against  a  sovereign  appearing  before  the  local  courts 
disappears. 

In  an  action  against  the  Khedive  of  Egypt,  who  had  chartered  his  public 
vessel  for  the  carriage  of  freight,  the  jurisdiction  of  the  courts  was  admitted. 
See  the  decision  of  the  British  High  Court  of  Admiralty  of  May  7,  1873,  in  the 
Journal  du  droit  inlernational  prit'e,  1874,  p.  36.  [This  case.  The  "Charkieh," 
4  A.  and  E.  59,  was  an  action  in  rem,  although  the  Court  actually  held  that 
the  Khedive,  by  engaging  in  the  shipping  business,  was  not  entitled  to  the 
immunities  of  a  sovereign  prince — Transl.] 

In  the  Hullet  case,  begun  by  the  King  of  Spain  in  the  character  of  a  sover- 
eign, as  plaintiff,  without  appointing  a  public  officer  to  represent  him,  the 
American  (Sic)  courts  declared  they  had  jurisdiction  over  him.  (The  King  of 
Spain  V.  Hullet,  Reports  of  Lords,  vol.  I,  p.  333.)  [This  case,  decided  by  a  Brit- 
ish court,  really  held  that  a  foreign  sovereign  Prince,  though  entitled  to  sue  in 
his  political  capacity,  stands  on  the  same  footing  as  ordinary  suitors  as  to 
the  rules  and  practice  of  the  Court,  and  is  bound,  like  them,  to  answer  a 
cross-bill  personally  and  upon  oath.  1  CI.  and  Fin.  (1833),  p.  333. — Transl.] 
Compare:  Fiore,  Dirilto  pubblico  inter nazionale,  4th  ed.,  v.  I,  §§  493  ei  seq., 
and  the  words  Agenti  diplomatici  in  Digesto  italiano. 

[To  the  effect  that  a  state  by  bringing  suit  does  not  thereby  abandon  its 
sovereignty  and  subject  itself  to  an  affirmative  judgment  upon  a  counterclaim 
see  People  v.  Dennison,  84  N.  Y.  272;  U.  S.  v.  Eckford,  6  Wall.  490.  As  to 
inadmissibility  of  executing  the  judgment  against  a  foreign  sovereign,  even  if 
he  has  submitted  to  the  jurisdiction  in  the  matter  of  a  counterclaim  against 
him,  see  the  important  case  of  von  Hellfeld  v.  Russia,  decided  by  the  Prussian 


RIGHT   OF  JURISDICTION  201 

Court  for  the  determination  of  Jurisdictional  Conflicts,  June  25,  1910,  printed 
in  Amer.  Journ.  of  Int.  Law,  v.  5,  pp.  490-519. — Transl.] 

335.  The  sovereign  of  a  state  cannot  be  subjected  to  civil 
jurisdiction  on  account  of  acts  undertaken  as  head  of  the  state, 
even  though  these  acts  may  violate  the  rights  of  foreigners  and 
they  may  claim  the  jurisdiction  of  their  national  courts. 

Jurisdiction,  considered  as  a  right  of  the  state,  cannot  extend  to  the  actions 
of  a  foreign  sovereign  as  such  without  implying  the  submission  of  one  state  to 
another.  See,  the  suit  entered  by  Madame  Masset,  who  had  summoned  the 
Czar  before  the  French  Courts,  for  an  arbitrary  act  for  which  she  held  him  re- 
sponsible, Paris,  August  23,  1870,  Journal  du  Palais,  1871,  p.  73. 

See  also  the  Solon  case.  Mr.  Solon,  having  been  instructed  by  the  Khedive 
to  open  a  school  at  Cairo,  sued  this  Prince  for  damages  arising  out  of  his  arbi- 
trary dismissal.  This  case  is  reported  by  Philhmore  in  the  appendix  to  his 
first  volume. 

336.  A  deposed  sovereign  who  no  longer  effectively  exercises 
supreme  power,  cannot  legally  perform  any  act  of  government. 
Therefore,  if  he  should  undertake  s^ch  acts  and  thereby  cause 
injuries  to  individuals,  he  could  not  claim  immunity  from  the 
local  jurisdiction  in  actions  brought  against  him  by  the  persons 
he  has  unjustly  injured. 

See  the  suit  brought  against  the  former  Duke  of  Modena  who,  after  his  fall, 
had  quite  a  number  of  political  prisoners  transferred  to  the  fortress  of  Mantua 
and  kept  there  as  prisoners,  notwithstanding  the  loss  of  his  sovereign  power. 
The  suit  brought  against  the  ex-Duke  by  the  pri.soners,  who  demanded  dam- 
ages for  their  arbitrary  imprisonment,  came  before  the  Italian  courts. 

See  the  decision  of  the  Court  of  Genoa  of  August  6,  1869,  and  that  of  the 
Court  of  Cassation  of  Turin  of  July  8,  1871,  which  recognized  the  competence 
of  the  courts  with  respect  to  the  acts  performed  by  the  ex-Duke  since  he 
had,  by  virtue  of  the  plebiscite,  lost  his  sovereignty. 


JURISDICTION   OVER   FOREIGN    STATES 

337.  The  foreign  state,  as  a  political  entity,  when  perform- 
ing acts  of  government  in  the  exercise  of  its  functions  and  sover- 
eign rights,  cannot  be  subjected  to  the  jurisdiction  of  the  country 
of  which  the  persons  claiming  to  have  been  injured  by  such  acts 
are  citizens. 

The  responsibility  of  the  state  for  acts  done  in  its  name  must  be 
governed  by  the  rules  concerning  the  international  obligations  of 
the  state  in  its  relations  with  foreign  states. 

Compare  rules  223-226. 


202  INTERNATIONAL   LAW    CODIFIED 

338.  Those  acts  of  administration  performed  by  a  foreign  gov- 
ernment, which  by  their  nature  must  be  considered  as  within  the 
domain  of  civil  relations,  must,  so  far  as  their  litigious  consequences 
are  concerned,  be  subject  to  the  ordinary  jurisdiction  of  the  courts 
and  to  the  rules  of  procedure. 

In  order  to  understand  fully  the  importance  of  the  two  foregoing  rules,  it 
must  be  noted  that  the  state  may  be  considered  from  a  double  point  of  view, 
as  a  poHtical  entity  and  as  a  juridical  person.  From  the  former  point  of  view, 
the  acts  it  performs  always  imply  the  exercise  of  sovereign  power  and  must 
be  governed  by  public  and  constitutional  law  for  their  internal  consequences 
and  by  international  law  for  their  external  consequences.  They  are,  therefore, 
not  within  the  local  jurisdiction.  The  case  is  quite  different  as  regards  acts 
performed  by  the  state  as  a  juridical  person.  It  has,  as  such,  the  power  to 
bind  itself,  to  contract,  to  acquire  property  in  a  private  capacity,  to  incur 
debts,  and  to  perform  all  the  acts  of  civil  life  just  like  any  other  juridical 
person.  Now  since,  in  these  acts,  sovereignty  is  not  in  question,  and  since 
by  their  nature,  the  said  acts  must  be  considered  as  within  the  domain  of 
private  law,  it  follows  that  the  principles  which  must  govern  them,  as  well 
as  the  civil  consequences  and  legal  actions  to  which  they  may  give  rise,  are 
those  of  private  law.  Thus,  a  deed  of  sale  does  not  change  either  its  nature 
or  character,  according  as  the  contracting  parties  are  both  private  persons 
or  one  of  them  is  a  corporation,  a  foundation,  a  state  or  a  foreign  government. 
Compare:  Court  of  Cassation  of  Rome,  joint  sitting.  May  30,  1869.  Comune 
di  Firenze  v.  Ponlonari,  Foro  italiano,  1879,  1190. — Cass,  of  Florence,  Novem- 
ber 27,  1879,  Lucchi  v.  Comune  di  Firenze,  id.,  1879,  1072. 

It  is,  therefore,  undeniable  that  the  rules  of  "common"  law  relating  to 
contractual  obligations,  so  far  as  their  consequences  and  the  legal  actions  to 
which  they  may  give  rise  are  concerned,  must  be  applied  even  to  a  foreign 
government  which  has  contracted  in  the  fiscal  interests  of  the  state  it  repre- 
sents. 

It  is  according  to  that  distinction  that  we  have  already  shown  in  our  article 
under  the  words  Agenli  diplomatici  in  the  Digesto  italiano  (v.  II,  p.  915,  no.  217) 
that  we  may  determine  when  to  admit  or  deny  jurisdiction  with  regard  to 
foreign  governments. 

339.  All  acts  must  be  deemed  within  the  domain  of  civil  rela- 
tions which  by  their  nature  do  not  affect  the  personality  of  the 
state  as  a  political  institution,  but  which  concern  it  rather  as  a 
corporation. 

Such  are: 

a.  The  acts  and  contracts  concluded  for  the  purpose  of  adminis- 
tration, e.  g.,  the  operation  of  public  works; 

b.  The  acquisition  of  real  or  personal  property  under  contract 

either  by  private  title  or  by  way  of  universal  succession  to 
or  by  legacy  from  a  private  individual; 


RIGHT   OF   JURISDICTION  203 

c.  Acts  relating  to  industrial  or  commercial  undertakings,  for 

their  effects  in  the  territory  of  a  foreign  state; 

d.  All  similar  acts,  for  the  effects  they  may  produce  in  private 
international  relations,  provided  they  do  not  affect  the 
political  personality  of  the  foreign  state. 

340.  Whenever  the  competence  of  territorial  courts  over  acts 
performed  by  a  foreign  government  is  admitted,  the  rules  of 
"common"  law  in  force  in  the  country  where  the  action  is  brought 
must  be  observed  in  all  matters  relating  to  practice  and  procedure, 
as  in  the  case  of  civil  actions  brought  against  the  state  as  a  corpora- 
tion. 

341.  Judgment  rendered  against  a  foreign  state  shall  not  be 
carried  into  effect  bj^  forcible  execution  upon  its  property  or  reve- 
nues; but  diplomatic  channels  must  be  resorted  to  in  accordance 
with  the  rules  of  administrative  procedure,  save  in  cases  where 
the  foreign  state  in  its  private  capacity  possesses  property  in  the 
country  where  the  judgment  ^as  rendered. 

This  proposed  rule  is  based  on  the  just  idea  that  the  same  rules  cannot  be 
applied  to  the  property  of  the  state  and  to  that  of  private  persons,  when  we 
deal  with  forcible  execution  against  the  property.  State  property  is  intended 
for  the  satisfaction  of  public  needs,  and  it  is  easy  to  understand  that  ordinary 
methods  of  execution  must  be  deemed  inconsistent  with  the  administration 
of  the  property  of  the  state  and  the  ultimate  use  of  its  funds  and  revenues. 

The  obstacle  which  inevitably  stands  in  the  way  of  executing  a  judgment 
against  a  foreign  state  does  not  constitute  a  decisive  argument  to  defeat  the 
jurisdiction  itself.  The  right  of  a  plaintiff  to  request  a  oconpetent  court  to 
render  a  judgment  and  to  find  against  the  foreign  state  cannot  be  denied,  not- 
withstanding the  fact  that  after  having  obtained  the  judgment  he  cannot 
enforce  it  except  in  the  forms  and  under  the  conditions  prescribed  by  con- 
.stitutional  and  international  law. 

Compare  the  decision  of  the  Court  of  Lucca,  of  March  22,  1887,  Hampson 
v.  Bey  of  Tunis,  Foro  italinno,  1887,  I,  474.  [See  also  the  exhaustive  opinion 
of  the  German  court  in  Ilellfdd  v.  Russia,  printed  in  Amer.  Journ.  of  Int. 
Law,  v.  5,  pp.  490-519.— Transl.] 

342.  It  must  always  be  considered  proper  according  to  the 
comitas  gentium,  in  the  case  of  judicial  proceedings  against  a  for- 
eign government,  to  make  all  possible  efforts  to  settle  the  difficulty 
by  diplomacy.  If,  however,  the  government  of  the  foreign  state 
refuses  to  recognize  the  claims  of  ihv,  plaintiff  and  declines  to  settle 
the  case  through  administrative  channels,  the  institution  of  an 
action  brought  against  the  state  cannot  be  opposed. 


204  INTERNATIONAL    LAW    CODIFIED 

JURISDICTION    OVER    FOREIGN   MINISTERS 

343.  Foreign  diplomatic  agents  shall  not  be  subject  to  the 

territorial  jurisdiction  for  acts  performed  by  them  as  such,  while 

invested  with  the  public  character  of  representatives  of  a  foreign 

government.    If,  however,  their  acts  involve  civil  consequences  and 

obligations,  the  rules  concerning  acts  of  gestion  or  administration 

performed  bj^  a  foreign  government  must  be  applied  in  all  matters 

relating  to  judicial  proceedings  and  the  competence  of  courts. 

By  virtue  of  this  rule,  it  must  be  admitted  that  a  foreign  minister  cannot  be 
held  personally  responsible  even  for  the  civil  consequences  of  acts  performed 
by  him  as  a  diplomatic  agent  and  representative  of  a  foreign  government. 
Nevertheless,  we  must  admit  the  right  of  a  foreign  minister,  authorized  to 
provide  for  the  needs  of  the  legation,  to  conclude  a  lease  of  a  residence  for 
the  legation  or  to  furnish  the  residence.  In  this  and  in  similar  cases,  since  he 
acts  as  a  representative  of  his  government,  it  is  natural  that  the  civi  conse- 
quences of  his  acts  come  under  the  above  mentioned  rules  concerning  acts 
performed  by  a  foreign  government. 

344.  The  foreign  minister  who,  in  the  exercise  of  his  functions  as 
such,  offends  the  sovereign  or  his  government,  cannot  be  criminally 
prosecuted;  his  recall  only  may  be  requested,  or  his  passports 
given  him. 

It  is  always  incumbent  on  the  state  represented  to  disavow  the 
acts  of  its  minister  and  to  offer  to  the  offended  state  the  satisfaction 
to  which  it  is  entitled.  Otherwise,  it  would  assume  responsibility 
for  the  acts  committed  by  its  minister  as  its  representative. 

345.  When  a  foreign  minister  performs  an  act  which  is  clearly 
of  a  hostile  character,  the  government  of  the  state  to  which  he  is 
accredited  may  detain  him  until  the  government  he  represents  has 
recognized  the  justice  of  its  complaint  and  until  the  pending 
difficulty  has  been  settled  by  diplomacy. 

If  that  difficulty  should  lead  to  war  between  the  two  states,  the 
foreign  minister  may  be  detained  as  a  prisoner  of  war. 

In  principle,  the  foreign  minister,  in  so  far  as  he  represents  the  state  and 
performs  acts  as  such  in  the  name  of  his  government,  cannot  be  held  personally 
responsible  for  his  acts,  since  by  reason  of  his  representative  character  he  is 
acting  in  the  name  of  the  foreign  state.  Hence  it  follows  that  when  such  acts 
give  rise  to  a  difficulty  between  the  two  governments,  it  must  come  under 
the  general  rules  governing  disputes  between  states. 

346.  Diplomatic  agents  who,  in  the  state  where  they  reside, 
perform  acts  in  no  way  connected  with  their  character  as  public 
ofl&cers  or  representatives  of  a  foreign  government,  but  which,  by 


RIGHT   OF   JURISDICTION  205 

their  nature,  must  be  considered  as  within  the  domain  of  civil  and 
private  relations,  may,  with  respect  to  all  the  consequences  of  those 
acts,  be  rendered  subject  to  the  territorial  courts,  save  for  such 
concessions  as  are  necessary  to  protect  the  dignity  of  the  rep- 
resented state. 

The  purpose  of  the  foregoing  rules  is  to  determine  exactly  the  scope  of  the 
privilege  of  exterritoriality  enjoyed  by  the  representatives  of  foreign  states. 

Leaving  aside  legal  fictions,  it  must  be  recognized  that,  from  the  nature  of 
things,  the  representative  of  a  foreign  state  being  endowed  in  all  his  acts  with 
a  pubUc  character,  cannot  be  subject  to  the  jurisdiction  of  the  state  to  which 
he  is  accredited.  He  represents,  in  fact,  the  very  person  of  the  sovereign,  and 
he  cannot  be  subject  to  the  local  jurisdiction,  because,  since  this  is  inseparable 
from  the  local  sovereignty,  his  submission  to  territorial  jurisdiction  would  be 
equivalent  to  making  the  sovereign  he  represents  a  dependent  of  the  sovereign 
of  a  foreign  state. 

It  was,  therefore,  very  properly  that  the  Court  of  Paris,  in  the  Mass6  case, 
expressed  itself  as  follows:  "Inasmuch  as  the  reciprocal  independence  of  states 
is  established  by  international  law  .  .  .  ;  and  to  undertake  to  subject  to 
the  local  jurisdiction  the  sovereign  of  a  foreign  country,  i.  e.,  to  the  jurisdiction 
and  orders  of  a  judge  of  another  country,  would  be  a  manifest  injury  to  a  foreign 
state  and  violate  to  that  extent  the  law  of  nations  .  .  .  ;  and  the  incom- 
petence of  the  court  was  in  that  respect  a  matter  of  public  policy  and  ab- 
solute. .  .  ."     (Paris,  August  23,  1870,  Journal  da  Palais,  1871,  p.  73.) 

Thus,  it  is  not  under  the  fiction  of  exterritoriality  but  under  the  principle 
of  the  reciprocal  independence  of  states,  that  foreign  ministers  must  be  ex- 
empted from  territorial  jurisdiction  for  all  acts  performed  as  representatives 
of  the  state  which  has  accredited  them. 

In  private  legal  relations,  it  cannot  be  maintained  that  they  must  be  exempt 
from  territorial  jurisdiction,  because  these  relations  are  always  identical 
whether  they  are  contracted  between  two  private  individuals  or  between  an 
individual  and  a  foreign  minister. 

Sale,  rent  or  deposit  do  not  change  their  nature,  character  or  substance 
when  a  foreign  minister  assumes  the  part  of  seller,  buyer,  lessor,  lessee,  de- 
positor or  depositary.  See  Fiore:  Agenti  diplomalici,  in  the  Digeulo  italiano, 
§j  171  et  seq.;  Dirillo  inlernazionale  pubblico,  4th  ed.,  v.  II,  §§  1194-1229. 
Compare:  F^raud-Giraud,  Elats  et  souverains  devant  les  tribunaux  elrangers, 
V.  II,  Paris,  1895,  Appendix. 

347.  Diplomatic  agents  who  criminally  violate  the  rights  of 
private  parties  are  subject  to  the  criminal  jurisdiction  of  the  state 
to  which  they  are  accredited,  save  for  such  concessions  as  are 
necessary  to  protect  the  dignity  of  the  represented  state. 

Oppenheim,  Internatimal  law,  2d  ed.,  v.  I,  §§  301  et  seq. 

JURISDICTION   OVER   FOREIGN   CONSULS 

348.  Foreign  consuls  are  not  subject  to  territorial  jurisdiction 
for  acts  porforniod  by  thcra  as  public  officials,  according  to  the 


200  INTERNATIONAL   LAW    CODIFIED 

laws  and  regulations  and  the  functions  assigned  to  them  by  the 
consular  convention  and  agreements  concluded  between  the  two 
states. 

If,  however,  these  acts  should  have  civil  consequences  and  justify 
a  civil  action  against  their  home  government,  the  competence  of 
territorial  courts  could  be  admitted  under  the  rules  relating  to  the 
jurisdiction  over  foreign  governments  and  states. 

In  order  that  tliis  rule  may  be  fully  understood,  it  is  necessary  to  recall  that 
public  officers,  although  not  personally  responsible  for  acts  performed  in  their 
capacity  as  public  officers,  may  under  certain  circumstances  involve  the  re- 
sponsibility of  the  state. 

This  question  was  argued  before  the  Italian  courts,  in  consequence  of  a 
promise  made  by  the  consul  of  Greece,  as  such,  to  pay  the  suras  due  to  the 
Aversa  insane  asylum  where  he  had  requested  the  confinement  of  an  insane 
Greek  woman.  On  request  of  the  management  of  the  asylum,  the  Italian 
courts  declared  themselves  competent.  The  Court  of  Cassation  of  Naples, 
in  its  decision  of  March  16,  1886,  decided  that  the  foreign  consul  (and  through 
him  the  government  to  which  he  owes  his  office)  cannot  be  considered  as  im- 
mune from  the  jurisdiction  of  the  courts  of  the  state  with  regard  to  the  obli- 
gations contracted  in  Italy  in  providing,  as  a  consul,  for  the  needs  of  his  coun- 
trymen (Giurisprudenza  italiana,  Typaldos,  consul  of  Greece  v.  Manicomio  di 
Aversa,  1886,  Parte  I,  sezio7ie  I,  228). 

See  also  the  judgment  of  the  Court  of  Catania,  of  August  16,  1888,  in  Leva 
V.  Belfiore,  Giurispr.  catanese,  1888,  p.  189. 

349.  Consuls  engaged  in  commerce  or  performing  acts  of  private 
business  are  in  these  matters  fully  subject  to  the  commercial  or 
civil  jurisdiction  of  the  country  in  which  these  transactions  are 
undertaken. 

Even  when,  under  a  consular  convention,  the  respective  consuls  must  enjoy, 
under  reciprocity,  certain  privileges,  exemptions,  prerogatives  and  immunities, 
it  cannot  be  maintained  that  they  may  benefit  by  them  when  they  are  engaged 
in  business  or  perform  acts  governed  by  private  law. 

In  the  protocol  signed  by  Italy  and  Roumania  to  fix  the  exact  scope  of  the 
consular  convention  concluded  between  them,  it  is  provided:  "It  is  understood 
that  the  respective  consuls  of  the  two  countries,  if  they  engage  in  business, 
shall  be  entirely  subject,  in  so  far  as  concerns  provisional  detention  in  commer- 
cial transactions,  to  the  legislation  of  the  country  in  which  they  act  as  consuls." 
(Bucharest,  March  13,  1881,  Collezione  dei  irattati  e  convenzioni  tra  V Italia  egli 
Stall  stranieri,  v.  X,  p.  799.) 

350.  The  state  must  regulate  the  exercise  of  its  jurisdiction  and 
the  rights  of  the  local  authorities  with  respect  to  foreign  consuls 
with  the  consideration  and  regard  due  them  by  reason  of  their 
public  character;  it  must  also  assure  them  the  enjoyment  of  all 
the  rights,  immunities,  privileges  and  exemptions  which  are 
granted  them  by  the  consular  convention  or  under  "common"  law. 


i 

X 


RIGHT   OF  JURISDICTION  207 

351.  It  must  be  admitted,  in  principle,  thiat  while  consuls  can- 
not enjoy  all  the  rights  and  privileges  granted  to  diplomatic  agents, 
they  are,  nevertheless,  entitled  to  all  the  guaranties  of  their  per- 
sonal security,  to  entire  liberty  properly  to  perforin  their  duties, 
and  to  the  effective  co-operation  of  the  local  authorities  for  the 
execution  of  the  measures  they  are  bound  to  take  in  order  to  per- 
form their  duties. 

In  most  consular  conventions,  while  not  recognizing  the  exemption  of  consuls 
and  consular  agents  from  the  territorial  jurisdiction,  the  principle  is  admitted 
that  they  cannot  be  subject  to  arrest  unless  they  are  guilty  of  serious  offenses. 
In  the  convention  of  May  15,  1874,  between  Italy  and  Austria,  article  5  reads 
as  follows:  "Consuls  general,  consuls,  vice-consuls  and  consular  agents,  subjects 
of  the  high  contracting  party  which  named  them,  shall  enjoy  personal  im- 
munity from  arrest  and  imprisonment,  unless  the  offense,  if  committed  in 
Austria-Hungary,  is  considered  a  crime  or  punished  by  a  grave  penalty,  or, 
if  committed  in  Italy,  is  affected  with  a  criminal  penalty." 

The  same  provision  is  contained  in  the  consular  convention  between  Italy 
and  Russia  of  April  16,  1875,  under  which  arrest  is  permitted  only  when  the 
offenses  are  punishable  by  a  penalty  of  more  than  one  year's  imprisonment. 
(Convention  of  April  16-28,  1875,  art.  2,  sect.  2.) 

To  complete  these  rules,  see  infra,  the  rights  and  prerogatives  of  consuls. 


TITLE  XII 

EXTERRITORIALITY 

352.  Exterritoriality  is  a  form  of  privilege  or  exemption  con- 
sisting of  a  limitation  of  territorial  sovereignty  with  regard  to  cer- 
tain persons  and  certain  places,  which  under  international  law 
enjoy  the  privilege  of  remaining  outside  the  jurisdiction  of  the  state 
in  whose  territory  they  are  situated. 

The  word  exterritoriality  expresses  inadequately  and  vaguel}'  the  excep- 
tional situation  in  which  certain  persons  and  objects  find  themselves  with 
respect  to  territorial  law.  Taking  the  word  in  its  literal  meaning,  it  might  be 
supposed  that  it  means  that  the  persons  enjoying  exterritoriality  are  in  the 
same  situation  as  those  who  are  outside  the  territorj-,  and  that  objects  must  be 
considered  as  not  part  of  the  territory,  which  is  entirely  wrong.  The  fact  is 
merely  that  certain  persons  and  things,  because  of  an  exception  laased  on  inter- 
national law,  are  outside  of  the  general  rules  of  territorial  law.  Therefore, 
the  jurisdictional  power  of  the  territorial  sovereign  is  to  be  regarded  as  limited 
with  respect  to  what  is  comprised  in  the  exception,  and  in  that  respect  persons 
and  things  must  be  considered  as  if  they  were  outside  the  territory  of  the  state. 

All  authors  are  now  agreed  on  the  true  meaning  of  the  word.  Compare: 
Fiore,  Nuovo  diritto  inter nazionale  pubblico,  1st.  ed.,  1865,  p.  582;  id.,  Effelli 
internazionali  delle  sentenze  e  degli  atti,  parte  2,  §§412  et  seq.  (Torino,  Loescher, 
1877);  id.,  Trattato  di  Diritto  inter  nazionale  pubblico,  v.  I,  p.  372  (Torino,  1879); 
Laurent,  Droit  civil  international,  v.  I,  51-88;  Bar,  Theorie  und  Praxis,  v.  II, 
.509-526,  Lehrbuch,  §  77;  Heffter,  Droit  international,  §  42;  Rivier,  Principes  du 
droit  des  gens,  v  .1,  §  67,  p.  330;  Bluntschli,  Droit  internalional,  rule  135;  Bonfils, 
Droit  international,  §  337;  Oppenhoirn,  I nternational  law,  Exterritoriality,  v.  I, 
2d  ed.,  Monarchs,  pp.  429-431,  of  diplomatic  envoys,  460-463. 

We  have  fully  explained  the  principles  which  should  govern  exterritoriality 
in  Digesto  italiano,  word  Agenli  diplomalici. 

PERSONS    WHO    ENJOY   THE    PRIVILEGE    OF   EXTERRITORIALITY 

353.  The  privilege  of  exterritoriality  extends: 
a.  To  sovereigns; 

h.  To  diplomatic  agents  invested  with  the  character  of  repre- 
sentatives of  a  foreign  state; 

c.  To  the  Pope; 

d.  To  citizens  who  live  in  countries  subject  to  the  system  of 
capitulations. 

208 


EXTERRITORIALITY  209 

364.  Exterritoriality,  with  respect  to  the  persons  who  enjoy  it, 
cannot  signify  that  they  should  be  considered  as  not  actually  in 
the  territory  of  the  state;  it  merely  implies  a  limitation  of  the  right 
of  local  sovereignty  with  respect  to  such  persons,  to  safeguard  their 
independence  or  to  protect  their  rights. 

Compare:  Delepoulle,  Expose  theorique  de  la  fiction  d' exterrilorialiie  par 
rapport  aux  personnes,  1897;  Pietri,  Elude  crilique  sur  la  fiction  d'exterrito- 
rialile,  1895,  pp.  68  et  seq. 

SOVEREIGNS   AND    FOREIGN   DIPLOMATIC   REPRESENTATIVES 

365.  The  sovereign  cannot  exercise  jurisdiction  over  foreign 
sovereigns  who  are  temporarily  in  the  territory  of  the  state,  nor 
with  respect  to  diplomatic  agents  so  far  as  concerns  acts  performed 
in  their  character  as  representatives  of  the  foreign  state.  These 
agents  can  only  be  subject  to  local  jurisdiction  with  respect  to  acts 
having  no  connection  with  their  public  character,  but  which  must 
be  considered  as  within  the  domain  of  private  legal  relations. 

Compare  rules  333-338. 

THE  POPE 

366.  The  Pope  must  be  considered  personally  inviolable  and 
not  subject  to  the  jurisdiction  of  the  territorial  sovereign  with 
respect  to  all  acts  he  happens  to  perform  in  the  exercise  of  his 
supreme  authority  as  head  of  the  government  of  the  Church  and 
of  the  ecclesiastical  hierarchy  and  priesthood. 

357.  No  government  can  without  violating  the  independence  and 
international  liberty  of  the  Pope,  impute  legal  liabiUty  to  him  and 
subject  him  to  its  own  jurisdiction  in  order  to  nullify  the  exercise 
of  his  spiritual  powers,  which  he  ought  to  be  able  to  use  with  abso- 
lute freedom,  e.  g.,  promulgating  the  dogma,  the  principles  of  the 
faith  and  the  rules  of  discipline  and  worship. 

PERSONS   SUBJECT   TO    THE    SYSTEM   OF   CAPITULATIONS 

358.  Foreigners  living  in  countries  where  Capitulations  are  in 
force  must  be  considered  as  outside  the  jurisdiction  of  the  territorial 
sovereign  in  the  cases  provided  for  by  the  Capitulations  themselves. 


210  INTERNATIONAL   LAW    CODIFIED 

by  treaties  or  by  customary  law;  they  must  submit  to  the  jurisdic- 
tion of  their  national  consuls  and  consular  agents,  whose  dutj''  it 
is  to  settle  their  difficulties  in  conformity  with  the  rules  of  the 
Capitulations,  treaties  or  established  custom. 

359.  The  limitation  of  the  jurisdictional  rights  of  the  terri- 
torial sovereign  delegated  by  convention  to  the  authority  desig- 
nated must  be  considered  as  an  exception  and  must  not  extend 
beyond  the  cases  and  circumstances  expressed  or  contemplated 
in  the  Capitulations.  Consequently,  capitulations  must,  in  so  far 
as  they  are  derogatory  to  the  rules  of  "common"  law,  be  inter- 
preted and  applied  in  a  restrictive  sense,  just  like  any  special  and 
exceptional  law  restricting  the  free  exercise  of  the  rights  of  the 
territorial  sovereign. 

360.  The  privilege  of  extraterritoriality,  which  can  be  enjoyed 
under  Capitulations,  is  personal  and  cannot  be  so  extended  as  to 
cover  consular  districts  in  the  countries  where  such  Capitulations 
are  in  force  and  hence  citizens  of  different  states  there  resident. 

361.  The  public  legal  relations  between  the  foreign  sovereign 
who  exercises  extraterritorial  jurisdiction  and  the  territorial 
sovereign,  with  respect  to  acts  performed  in  the  consular  district, 
must  be  governed  by  the  principles  of  "common"  law,  it  being 
admitted  that  the  consular  district  cannot  be  considered  as  terri- 
tory of  the  state  which  exercises  jurisdictional  rights  by  virtue  of 
the  Capitulations. 

As  regards  the  relations  of  individuals,  the  rules  of  private 
international  law  must  be  applied,  except  for  such  derogations 
from  these  rules  as  are  contemplated  in  the  Capitulations,  treaties 
and  customary  law. 

The  purpose  of  the  foregoing  rules  is  to  determine  clearly  the  extraterrito- 
riality resulting  from  the  system  of  Capitulations.  Capitulations,  in  reaUty, 
constitute  derogations  from  "common"  law,  since  under  them  the  territorial 
state  suffers  a  considerable  limitation  in  the  exercise  of  its  jurisdiction  and  is 
obliged  to  permit  the  foreign  state  to  exercise  jurisdictional  rights  with  respect 
to  its  citizens  residing  in  the  territory. 

It  cannot  be  inferred,  however,  that  the  territorial  state  is  deprived  of  emi- 
nent domain  and  imperium  as  if  the  consular  district  were  no  longer  a  part  of 
the  territory  of  the  state.  This  district  must  merely  be  considered  as  an  appen- 
dage of  the  territory  of  the  foreign  state  which,  by  reason  of  the  Capitulations, 
exercises  jurisdictional  rights  over  its  citizens  residing  in  the  consular  district. 

An  application  of  our  rule  was  made  by  the  French  courts  with  reference  to 
the  form  of  celebration  of  marriage  and  to  the  observance  of  the  rule  locus 
regit  actum.    Thus,  the  French  Court  of  Cassation  said:  "The  fiction  of  extra- 


EXTERRITORIALITY  211 

territoriality  which  arises  from  the  Capitulations,  so  far  as  concerns  French- 
men residing  in  the  Levant,  cannot  in  consequence  necessarily  impose  on  them 
the  obhgation  of  subjecting  themselves  to  the  French  law  in  respect  to  all  acts 
they  may  perform  in  that  country  (Cass.  April  18,  1865,  Journal  du  Palais, 
1865,  p.  770). 

The  same  view  was  taken  by  the  Court  of  Cassation  of  Turin  in  its  decision 
of  July  29,  1870  (Monitore  dei  Tnbunali,  1870,  749). 

See  also  the  decision  of  the  Court  of  Cassation  of  Rome,  November  26,  1888, 
in  the  Russo  case.  The  Court  decided  that  the  offense  committed  by  an 
Italian  citizen  in  a  country  where  the  consular  jurisdiction  is  recognized 
(SmjTna),  while  subject  to  Italian  laws  and  justiciable  by  Italian  courts, 
could  not  be  considered  as  an  offense  committed  in  the  kingdom,  but  rather  in 
a  foreign  country.  Foro  italiano,  1889,  part  2,  p.  3;  and  Pomodoro,  Le  capi- 
tolazioni  e  la  giuridizione  consolare  negli  scali  del  Levanle,  in  the  magazine  La 
Legge,  1889,  v.. I.  Compare,  Fiore,  Diritto  inlernazionale  privato,  4th  ed.,  v.  I, 
§  240. 

362.  The  regime  of  Capitulations  and  the  resulting  limitations 
upon  the  jurisdiction  of  the  territorial  sovereign  should  be  con- 
sidered as  abrogated  in  fact  and  in  law : 

a.  When  the  country  where  the  Capitulations  are  in  force  is 
annexed  to  an  independent  state; 

b.  When  it  ranks  by  reason  of  its  civilization  with  civilized 
countries; 

c.  When  it  is  under  the  protectorate  of  a  civilized  state. 

This  principle  may  be  considered  as  established,  since  all  governments  have 
agreed  that  Capitulations  cannot  remain  in  force  in  countries  where  the  Mus- 
sulman administration  has  been  replaced  by  Christian  civilized  states  (as 
happened  at  Massaua),  or  by  the  protectorate  of  a  civilized  state  (as  was  the 
case  in  Tunis). 

In  the  treaty  of  June  26,  1884,  between  Italy  and  Korea,  the  following  pro- 
vision is  found  (article  11):  "It  is  declared  and  established  that  the  right  of 
territorial  jurisdiction  over  Italian  subjects  in  Korea  conceded  in  this  treaty 
shall  be  relinquished  by  the  Italian  government  when  in  the  opinion  of  the 
said  government  the  laws  and  legal  procedure  of  Korea  shall  have  been  so 
modified  and  reformed  as  to  overcome  all  the  objections  which  now  prevent 
the  submission  of  Italian  subjects  to  Korean  jurisdiction,  and  when  Korean 
judges  shall  have  been  invested  with  the  same  legal  functions  and  the  same 
independent  position  as  Italian  judges."  [The  extraterritorial  jurisdiction 
of  the  United  States  has  been  relinquished  in  Korea  since  1905. — Transl.] 


PLACES    WHICH    ENJOY    THE    PRIVILEGE    OF    EXTERRITORIALITY 

363.  The  privilege  of  exterritoriality  is  assigned: 

a.  To  the  offices  of  foreign  legations  and  to  the  consular  archives; 

b.  To  the  buildings  intended  as  the  usual  residence  of  theuiin- 


212  INTERNATIONAL   LAW    CODIFIED 

isters  and  diplomatic  agents  accredited  to  the  sovereign  of 
the  state; 

c.  To  the  places  where  a  foreign  army  is  quartered; 

d.  To  the  buildings  used  for  the  habitual  residence  of  the  Pope, 
for  the  Administration  of  the  Holy  See,  for  the  meeting 
of  a  conclave  or  of  an  ecumenical  council,  or  for  the  offices 
of  the  pontifical  congregation. 

364.  The  sovereign  of  the  state  has  no  right  to  exercise  any 
jurisdictional  act  over  the  places  which  enjoy  extraterritoriality. 
Consequently,  he  cannot  proceed  to  search  a  dwelling,  or  ex- 
amine any  papers,  documents  or  records,  or  undertake  any  other 
act  of  investigation  in  such  places. 

365.  The  territorial  state  cannot,  however,  be  considered  as 
completely  deprived  of  eminent  domain  over  the  places  possessing 
the  privilege  of  exterritoriality.  It  can  only  be  considered  as  de- 
prived of  the  exercise  of  its  jurisdiction  according  to  "common" 
law. 

Exterritoriality  has  been  considered  as  a  legal  fiction,  under  which  persons 
who  may  claim  the  enjoyment  thereof,  are  to  be  considered  as  outside  terri- 
torial jurisdiction,  as  if  they  were  not  (although  in  fact  they  are)  in  the  terri- 
tory of  the  state.  With  regard  to  places,  it  has  come  to  be  decided,  always  be- 
cause of  the  fiction,  that  they  must  be  considered  as  if  they  were  not  in  fact 
a  part  of  the  state.  This  legal  fiction  was  accepted  by  the  old  writers.  Grotius 
was  among  the  first  to  hold  that  diplomatic  agents  sunt  quasi  extra  territorium 
(L.  II,  cap.  XVIII).  Nowadays,  it  seems  more  reasonable  not  to  accept  such 
an  exaggeration  and  it  is  not  considered  necessary  to  resort  to  legal  fiction  in 
order  to  justify  the  limitation  of  territorial  jurisdiction.  It  is  held  that  such 
limitation  must  be  considered  as  based  on  the  general  principles  which  govern 
the  reciprocal  independence  of  states  and  these  principles  render  it  indispensa- 
ble to  restrict  the  exercise  of  jurisdiction  with  respect  to  certain  persons  and 
places,  for  the  safeguarding  of  the  reciprocal  security  of  states  and  interna- 
tional relations. 

( 

EXTERRITORIALITY   OF   LEGATIONS 

366.  That  part  of  the  legation  where  the  archives  are  kept  and 
everything  relating  to  the  legation's  office,  including  the  documents 
and  objects  incident  to  the  pubUc  service  of  the  diplomatic  repre- 
sentative, must  be  considered  as  absolutely  outside  the  jurisdiction 
of  the  territorial  state. 

The  building  used  as  a  residence  by  the  diplomatic  representa- 
tive must  in  like  manner  be  considered  as  outside  territorial  juris- 
diction. 


EXTERRITORIALITY  213 

As  regards  minor  buildings  such  as  kitchens,  stables  and  others 
of  a  similar  nature,  the  limitation  of  local  jurisdiction  cannot  be 
considered  as  absolute,  but  must  be  deemed  subject  only  to  certain 
immunities  based  on  proper  consideration  due  to  a  foreign  minister. 

This  rule  seeks  to  give  to  the  privilege  of  exterritoriality  its  proper  limita- 
tions. It  implies  in  principle  a  partial  relinquishment  by  the  state  of  its  terri- 
torial sovereignty.  The  restriction,  within  the  limits  ascribed  to  it,  must  be 
considered  absolute.  It  constitutes,  however,  an  exception  and,  as  such,  must 
be  given  strict  interpretation  according  to  the  general  principles  of  law. 
"Every  state,"  said  Portalis,  "has  the  right  to  look  to  its  preservation,  and  in 
this  right  resides  sovereignty.  .  .  .  This  sovereign  power  cannot  be  limited, 
either  as  to  persons  or  as  to  things.  It  is  nothing,  if  not  complete.  ..." 
{Code  civil  suivi  de  I'expose  des  motifs,  II,  p.  12.) 

Under  the  exaggerated  view  of  exterritoriality,  it  was  conceived  that  the 
foreign  legation  was  a  part  of  the  foreign  state  represented,  and  it  was  held 
that  the  territorial  sovereign  should  be  considered  as  deprived  of  any  right  of 
jurisdiction.  Calvo  goes  so  far  as  to  deny  jurisdiction  in  criminal  cases  over 
any  offense  under  "common"  law  committed  in  the  legation  building,  even 
by  persons  of  no  official  character,  such  as  servants  and  clerks  (4th  ed.,  §§  1540- 
1541).  There  is  no  profit  in  further  discussion.  We  favor  the  absolute  ex- 
ception, restricted  within  its  purposes. 

Compare:  Fiore,  Agenii  diplomalici,  in  Digesto  italiano,  §6;  id.,  Effelli  in- 
ternazionali  delle  sentenze  penali,  §§  417-418,  and  the  authors  there  cited;  Rivier, 
Principes  du  droit  des  gens,  v.  I,  pp.  330;  Heffter,  §  205. 

We  have  always  maintained  that  it  is  never  possible  to  act  in  all  matters 
concerning  a  foreign  minister  without  due  regard  for  the  dignity  of  his  office. 
Therefore,  it  must  be  considered  essential  to  make  all  possible  concessions, 
and  the  local  authorities  should  always  refer  the  matter  to  the  Minister  of 
Foreign  Aff'airs.  Be  that  as  it  may,  we  cannot  admit  that  the  territorial  sov- 
ereign can  be  considered  as  deprived  of  all  right  and  power  over  the  building 
used  as  a  residence  by  the  foreign  diplomatic  representative. 


ASYLUM 

367.  Diplomatic  agents  must  not  make  use  of  the  legation 
building  to  shelter  persons  in  it  from  the  jurisdiction  of  the  terri- 
torial sovereignty  and  must  not  abuse  the  privilege  of  exterritori- 
ality. 

In  case  abuse  of  privilege  can  be  fully  and  conclusively  proved, 
the  diplomatic  agent's  home;  government  must  be  held  responsible. 

368.  Foreign  diplomatic  officers  cannot  be  regarded  as  forbidden 
to  grant  asylum  to  persons  accused  of  political  offenses,  or  to  pro- 
tect them  in  thcur  {xM-sonal  safety  from  th(;  local  government. 

Any  measure  by  the  local  authoiitics  against  persons  who  have 
taken  refuge  in  th«^  residence  of  a  foreign  minister  is  to  be  con- 


214  INTERNATIONAL   LAW    CODIFIED 

sidered  contraiy  to  those  principles  of  international  law  which 
justify  the  protection  extended  in  all  civilized  countries  to  political 
offenders. 

369.  Nevertheless,  the  foreign  minister  cannot  carry  the  pro- 
tection of  political  offenders  to  the  point  of  giving  them  refuge  in 
his  residence  to  plot  against  the  government  and  combat  the  politi- 
cal institutions  of  the  state. 

370.  The  foreign  accrediting  government  must  see  that  its 
legation  is  not  used  as  an  asylum  for  plotting  against  the  govern- 
ment of  a  friendly  state,  and  for  want  of  vigilance  in  that  respect 
it  shall  be  held  responsible  as  in  any  other  case  of  violation  of 
proper  diplomatic  relations. 

Asylum  by  legations  to  political  offenders  is  generally  admitted;  but  to  use 
it  in  order  to  facilitate  attacks  upon  the  safety  of  the  state  would  be  im- 
moderate. 

Compare,  Calvo,  Droit  internal.,  v.  Ill,  §  1521;  Oppenheim,  International 
law,  V.  I,  2d  ed.,  p.  461;  Moore,  Asylum  in  legations  and  consulates  and  in 
vessels,  1892. 

CRIMINAL   PROCEDURE   AND   JURISDICTION 

371.  The  local  authorities  should  never  be  permitted  to  search  the 
residence  occupied  by  a  foreign  diplomatic  officer.  In  the  matter 
of  the  legation  offices  and  other  buildings  attached  to  the  legation, 
although  they  are  not  used  for  his  residence  or  dwelling,  the  local 
authorities  should  not  be  able  to  act  as  they  would  with  regard 
to  private  individuals,  merely  following  the  rules  of  "common" 
law;  they  must  also  take  into  account  the  exceptions  properly 
based  on  the  consideration  due  to  the  representative  of  a  foreign 
state. 

372.  If  justice  should  require  a  search  in  order  to  arrest  a  crimi- 
nal who  has  taken  refuge  in  the  residence  of  a  foreign  minister, 
his  consent  must  be  obtained,  or  the  good  offices  of  the  Minister 
of  Foreign  Affairs  must  be  sought  to  obtain  such  consent. 

Local  authorities  can  merely  adopt  the  immediately  necessary 
measures  to  prevent  the  escape  of  the  accused  person  and  to  assure 
the  regular  course  of  justice. 

373.  If,  by  reason  of  very  exceptional  circumstances,  it  should 
be  necessary  to  search  a  foreign  minister's  legation  against  his  will, 
it  would  be  necessary  first  to  establish  the  grave  reasons  requiring 


EXTERRITORIALITY  215 

such  a  measure  and  to  make  tliem  known  to  the  foreign  minister, 
so  as  to  give  him  time,  if  desired,  to  remove  all  documents  and 
papers  relating  to  his  mission.  The  search  should  take  place  with 
great  moderation,  supposing  it  to  have  but  one  purpose,  the  arrest 
of  the  offender. 

The  foregoing  rules  tend  to  correct  the  erroneous  idea  that  the  house  of  a 
foreign  minister  can  be  considered  as  an  asylum  for  criminals  and  can  com- 
pletely escape  the  jurisdiction  of  the  territorial  sovereignty.  The  considera- 
tion due  the  representative  of  a  friendly  state  ceases  when  that  officer  attempts 
to  take  advantage  of  it  to  protect  offenders  against  the  law.  Calvo  mentions 
various  cases  which  corroborate  the  established  rules.  The  Duke  of  Riperda 
was  arrested  in  the  house  of  the  ambassador  at  Madrid.  The  Swedish  au- 
thorities surrounded  the  house  of  the  British  ambassador  at  Stockholm,  who 
had  refused  to  deUver  up  a  criminal  who  had  taken  refuge  there.  Calvo,  Droit 
internat.  public,  §§  513  et  seq. 

See  Fiore,  EffelLi  internazionali  delle  sentenze  penali  e  dell'  eslradizione,  §  417; 
Droit  penal  internalional,  v.  I,  §  27,  and  the  article  under  the  head  Agenli 
diplomatici  in  Digesto  ilaliano,  §  6,  notes  243-264. 

374.  If  it  should  be  necessary  to  try  a  criminal  for  a  crime  com- 
mitted in  the  house  of  a  foreign  minister,  the  jurisdiction  of  the 
territorial  state  must  be  deemed  entire  and  absolute  as  in  any  other 
case  of  offense  committed  in  the  territory  of  the  state. 

CIVIL   ACTS   PERFORMED    BY   LEGATIONS 

375.  Acts  affecting  the  civil  status  performed  in  legation  build- 
ings by  persons  attached  to  the  legation  or  by  others,  cannot  be 
considered  as  having  taken  place  in  the  territory  of  the  foreign 
accrediting  state. 

Consequently,  we  must  apply  to  marriages  performed  in  the 
legation  or  consulate  the  principles  of  "common"  law  which  govern 
marriages  celebrated  abroad,  and  to  regard  those  performed  there 
as  valid  only  when  the  parties  are  both  citizens  of  the  country  to 
which  the  legation  or  consulate  belongs,  subject  to  the  exceptions 
provided  for  by  treaty. 

Under  the  rules  established  by  treaty,  it  is  generally  agreed  that  when  the 
prospective  husband  and  wife  are  nationals  of  the  country  of  the  diplomatic 
agent  or  consul,  their  marriage  can  take  place  at  the  legation  or  consulate  in 
accordance  with  the  formalities  required  by  their  national  law,  and  that 
marriages  so  performed  must  be  considered  valid  everywhere.  Besides,  it  is  a 
general  rule  of  customary  law  that  it  is  permissible  for  contracting  parties  to 
follow  in  a  foreign  country  the  forms  of  their  national  law,  when  that  law  is 
common  to  all  the  parties.  In  such  case,  they  may  claim  that  the  act  so  per- 
formed is  valid  so  far  as  its  form  is  concerned. 


216  INTERNATIONAL   LAW    CODIFIED 

Owing  to  the  exterritoriality  of  legations,  it  was  believed,  furthermore,  that 
a  marriage  performed  at  the  legation  could  be  considered  as  performed  in  the 
country  to  which  the  legation  belongs  and  therefore  that  the  forms  required 
under  the  law  of  that  country  could  be  followed  by  all.  To-day,  however,  the 
principle  set  forth  in  our  rule  prevails. 

See  the  decision  of  the  civil  tribunal  of  the  Seine  in  reference  to  a  marriage 
performed  at  the  British  Embassy  in  Paris  between  a  Frenchwoman  and  an 
Englishman:  "In  view  of  the  fact,"  said  the  Court,  "that  although  the  lega- 
tion of  an  Embassy  should,  according  to  international  law,  be  regarded  as  the 
territory  of  the  state  which  accredits  the  ambassador,  this  is  only  so  from  the 
point  of  view  of  the  immunities  granted  by  treaties  to  diplomatic  officers,  but 
that  this  fiction  of  exterritoriality  cannot  be  extended  to  include  acts  affecting 
the  civil  status  of  inhabitants  of  the  country  to  which  the  ambassador 
is  accredited;  it  was  therefore  in  France  and  on  French  territory  that 
Morgan  and  Miss  French  were  when  they  contracted  marriage  on  Novem- 
ber 23,  1867.  ..." 

Tribunal  de  la  Seine,  Nov.  23,  1867.  Clunet,  Journal  du  droit  international 
prive,  1874,  p.  71.  See,  for  diplomatic  correspondence  on  the  subject,  Fiore, 
words  Agenti  diplomalici,  in  Digesto  italiano  and  Diritto  internazionale  pubblico, 
4th  ed.,  V.  II,  §§  1231  et  seq. 


HOW   THE   PRIVILEGE    OF   EXTERRITORIALITY   MAY   BE   LOST 

376.  Persons  who  enjoy  the  privilege  of  exterritoriality  for  cer- 
tain acts  may  lose  that  privilege  by  abusing  it  and  violating 
territorial  law. 

Such  abuse  must,  however,  be  conclusively  proved. 

377.  The  privilege  of  exterritoriality  possessed  by  certain  places 
may  be  lost  when  it  has  been  misused  for  a  purpose  different  from 
that  for  which  it  was  granted.  Such  misuse  must,  however,  be 
definitely  established  and  clearly  proved. 

378.  The  sovereign  of  a  state  who  is  unable  definitely  to  es- 
tablish the  abuse  of  the  privilege  of  exterritoriality  and  neverthe- 
less performs  some  act  of  jurisdiction  over  a  person  or  in  a  place 
enjoying  exterritoriality,  assumes  international  responsibility  for 
that  unlawful  act,  which  should,  in  principle,  be  characterized 
as  a  manifest  violation  of  international  law,  subject  to  the  rules 
which  govern  the  international  responsibility  of  states. 

The  violation  of  exterritoriality  should  in  principle  be  considered  as  a  vio- 
lation of  international  law  which  may  legitimate  all  the  measures  appropriate 
for  redressing  violations  of  that  law.  It  must  be  said,  however,  that  as  exterri- 
toriality depends  upon  the  urgent  need  of  effectively  protecting  the  purpose 
for  which  it  was  established,  should  such  purpose  as  to  certain  persons  and 
places  happen  to  be  wanting,  the  privilege  itself  would  cease  to  exist.  An  abuse 
of  the  object  for  which  exterritoriality  is  admitted,  would  justify  the  extension 
of  the  local  jurisdiction  to  the  abusing  person  or  place.    The  great  difficulty 


EXTERRITORIALITY  217 

consists  in  fully  and  clearly  proving  the  abuse  of  exterritoriality.  In  its  ab- 
sence, the  extension  of  local  jurisdiction  could  not  have  any  other  character 
than  that  of  a  violation  of  international  law. 


EXTERRITORIALITY    OF   CONSULATES 

379.  Consulates  cannot  be  considered  as  covered  by  the  privi- 
lege of  exterritoriality;  but  the  consular  archives  are  removed  from 
the  local  jurisdiction  of  the  territorial  state. 

380.  Consuls  must  provide  a  special  place  for  the  safe  keeping 
of  all  consular  and  administrative  documents,  giving  previous 
notice  to  the  authorities  of  the  country  and  indicating  the  place 
selected  for  such  deposit. 

Consuls  must  also  keep  in  a  separate  place  the  books,  papers  and 
documents  which  relate  to  commerce  and  industry  and  any  other 
documents  relating  to  their  personal  affairs  and  having  no  con- 
nection with  their  official  duties. 

381.  The  local  authorities  cannot,  in  principle,  undertake  any  act 
of  jurisdiction  in  that  part  of  the  consulate  which  contains  the 
consular  archives,  nor  proceed  to  any  search  or  seizure  of  the 
official  documents,  papers  and  objects  connected  with  the  service 
or  functions  of  the  foreign  consul. 

382.  Consuls  should  not  take  advantage  of  the  inviolability  of 
their  archives  to  remove  from  the  local  jurisdiction,  documents 
and  objects,  etc.,  requested  by  the  local  judicial  authorities,  nor 
make  use  of  the  said  archives  for  a  purpose  different  from  that  for 
which  they  were  intended.  In  case  of  proved  abuse,  the  judicial 
authorities  may  prescribe  the  measures  best  adapted  to  the  proper 
administration  of  justice.  They  must,  however,  exercise  their 
jurisdictional  powers  with  the  respect  due  to  consuls  and  resort 
to  diplomacy  to  recall  those  officials  to  the  observance  of  their 
professional  duties. 

In  the  agreement  concluded  between  Italy  and  France,  on  December  8, 1888, 
to  interpret  article  5  of  the  consular  convention  of  .July  2(5,  1882,  relating  to  the 
inviolability  of  consular  archives,  it  was  stipulated: 

"Art.  1.  The  words  'consular  archives'  apply  exclusively  to  the  files  of 
official  documents  and  others  directly  connected  with  the  service,  as  well  as 
to  the  place  designated  for  their  .safe  keeping. 

"Art.  2.  Consuls  general,  vice-consuls  and  consular  agents  are  expressly 
forl)iddon  to  place  documents  or  objects  not  having  that  character  in  the  rooms 
or  fil(^s  .set  aside  for  the  archives. 

"The  rooms  or  room  used  for  this  purpose  shall  be  absolutely  distinct  from 


218  INTERNATIONAL   LAW    CODIFIED 

those  used  for  the  private  residence  of  the  Consul  and  cannot  be  used  for  any 
other  purpose." 

For  the  details  of  the  difficulty  which  arose  between  Italy  and  France  with 
respect  to  a  seizure  made  in  the  archives  of  the  consul  of  France  at  Florence, 
see  Fiore,  Diritto  inlernazionale  pubblico,  4th  ed.,  Appendix,  p.  651. 


EXTERRITORIALITY    OF   PLACES   SET   APART   FOR   THE   HOLY   SEE 

383.  All  places  set  apart  for  the  government  of  the  Church  and 
m  which  the  Holy  See  exercises  its  spiritual  powers  and  func- 
tions, are  removed  from  the  territorial  jurisdiction,  that  is,  the 
places  selected  by  the  Pope  for  his  permanent  or  temporary  resi- 
dence, those  used  for  the  establishment  of  the  congregations  and 
other  high  ecclesiastical  offices,  and  those  where  a  conclave  or  an 
ecumenical  council  convenes. 

384.  The  exterritoriality  of  places  set  apart  for  the  Holy  See 
must  be  considered  entire  and  absolute.  The  local  authorities, 
therefore,  with  respect  to  such  places,  must  refrain  from  every  act 
of  jurisdiction  in  all  matters  which  concern  the  exercise  of  the 
power  and  functions  of  the  high  administration  of  the  church  by 
the  ecclesiastical  authorities.  Searches,  investigations,  or  seizures 
of  papers,  documents,  books  or  registers  in  the  offices  intended  for 
the  pontifical  congregations  must,  therefore,  be  forbidden  in  every 
case. 

385.  It  is  incumbent  upon  the  ecclesiastical  authorities  to  pre- 
vent the  places  assigned  to  the  Holy  See  from  being  used  as  an 
asylum  for  the  protection  of  offenders  against  "common"  terri- 
torial law,  or  to  insure  safety  to  those  persons  who  might  seek  to 
use  such  places  to  commit  serious  offenses  against  the  security  of 
the  state. 

Exemption  from  jurisdiction  under  the  rules  of  territorial  law 
must  be  regarded  as  absolute  and  unrestricted  so  long  as  the  object 
for  which  the  privilege  was  estabhshed  subsists;  but  it  must  be 
considered  as  abrogated  when  that  purpose  ceases  and  its  termina- 
tion is  clearly  proved. 

386.  When  the  local  authorities  deem  themselves  justified,  in 
order  to  safeguard  the  internal  security  of  the  state,  in  under- 
taking acts  of  jurisdiction  in  the  places  assigned  to  the  Holy  See, 
it  is  incumbent  on  them  to  act  with  moderation.  Consequently, 
any  impairment  of  the  privilege  of  exterritoriality  can  be  admitted 


EXTERRITORIALITY  219 

only  within  the  limits  strictl}'-  necessary  to  guarantee  public  safety 
and  to  insure  the  authority  and  enforcement  of  the  local  police 
and  criminal  laws. 

Article  7  of  the  law  of  May  13,  1S71,  relating  to  the  prerogative  of  the  Pope 
and  of  the  Holy  See  reads  as  follows :  ' '  No  public  officer  or  agent  may,  in  order 
to  perforin  his  duties,  enter  the  palaces  or  places  of  habitual  residence  or  tem- 
porary abode  of  the  Sovereign  Pontiff,  or  in  which  a  conclave  or  an  ecumenical 
council  is  meeting,  unless  he  is  authorized  by  the  Sovereign  Pontiff,  conclave 
or  council." 

By  this  article,  it  is  indirectlj^  admitted  that  the  public  authorities,  in  ex- 
ceptional circumstances,  may  exercise  their  powers  of  jurisdiction  in  the  places 
enjoying  the  privilege  of  exterritoriahty.  It  is  true  that  the  authorization  of 
the  Pope,  conclave  or  council,  is  a  condition  precedent  to  the  exercise  of  juris- 
dictional acts;  but  such  condition  must  be  considered  as  established  to  insure 
the  respect  due  to  the  Holy  See,  and  also  because  it  cannot  be  presumed  that 
the  ecclesiastical  authorities  would  ever  refuse  the  authorization  of  proceeding 
according  to  law,  when  they  recognize  that  the  necessities  of  justice  require  it. 


CORRECT  VIEW  OF  THE  EXTERRITORIALITY  OF  THE  HOLY  SEE 

387.  The  privilege  of  exterritoriality  enjoyed  by  the  places  set 
apart  for  the  Holy  See  cannot  result  in  assigning  to  these  places 
the  legal  status  of  territory  subject  to  the  sovereign  rule  of  the 
Pope.  Therefore,  while  the  Sovereign  Pontiff  may  freely  exercise 
spiritual  jurisdiction,  he  cannot,  in  these  places,  perform  jurisdic- 
tional acts  implying  the  exercise  of  the  powers  of  political  sover- 
eignty. 

The  foregoing  rules  must  serve  to  determine  the  true  legal  domain,  within 
whose  limits  the  rights  of  jurisdiction  of  the  territorial  sovereignty  are  exer- 
cised. The  exterritoriality  of  the  places  designed  for  the  use  of  the  Holy  See 
must  be  considered  as  absolute  within  its  purpose.  It  tends  to  assure  to  the 
Pope  complete  freedom  and  independence  with  respect  to  all  matters  concern- 
ing the  government  of  the  Church  and  the  exercise  of  his  powers  and  functions, 
and  in  that  respect  such  freedom  and  independence  cannot  be  limited.  Free- 
dom of  government  implies  the  freedom  and  independence  of  the  ecclesiastical 
authorities  entrusted  by  the  Pope  with  the  high  administration  and  govern- 
ment of  the  Church.  It  must  be  admitted,  therefore,  that  these  author- 
ities, in  so  far  as  they  exercise  their  powers  and  functions  as  delegates  of 
the  Pope,  must  be  completely  exempt  from  the  ordinary  jurisdiction  and 
command  of  the  territorial  sovereignty.  The  exterritoriality  of  the  places 
assigned  to  the  congregations  and  offices  charged  with  the  high  administra- 
tion of  the  Church  must  be  held  to  be  absolute. 

Nevertheless,  it  must  be  observed,  that  for  the  exercise  of  the  high  adminis- 
tration and  government  of  the  Church,  it  has  been  necessary  to  occupy  several 
buildings  located  in  various  sections  of  the  city  of  Rome  and  that  the  Vatican 
is  in  itself  a  great  space  which  comprises,  besides  the  portion  assigned  to  the 


220  INTERNATIONAL    LAW    CODIFIED 

habitual  or  temporary  residence  of  the  Pope,  great  buildings  where  a  great 
many  persons  Hve  (about  20,000)  who  do  not  share  in  the  exercise  of  spiritual 
power  and  the  majority  of  whom  are  Italian  citizens.  Now,  it  certainly  cannot 
be  admitted  that  all  these  buildings  and  such  an  extensive  portion  of  the  city 
can  be  considered  as  not  in  fact  a  part  of  Italian  territory,  regarding  such 
places,  dwellings  and  persons  as  absolutely  exempt  from  the  territorial  sov- 
ereignty, just  as  if  we  were  dealing  with  a  foreign  territory  subject  to  the  power 
of  a  foreign  political  sovereignty. 

The  territorial  state  exercises  its  power  first  of  all  by  imposing  its  laws  on  the 
persons  who  live  in  the  said  places  and  who  perform  acts  in  their  private  and 
civil  law  relations.  Consequently,  so  far  as  private  acts  are  concerned,  the 
people  who  live  in  the  Vatican  are  considered  as  living  on  Italian  territory  and 
as  recognizing  in  fact  the  authority  of  the  Italian  law,  when,  for  example,  they 
wish  to  marry  or  to  perform  any  other  civil  act. 

As  regards  disagreements  which  may  arise  by  reason  of  acts  performed  in 
the  Vatican  and  which  do  not  concern  the  administration  of  the  Church,  but 
the  property  and  private  interests  of  people,  the  competence  of  the  Italian 
courts  cannot  be  questioned.  It  is  not  possible  to  attribute  to  the  head  of  the 
Church  the  power  to  create  courts  to  decide  civil  law  cases. 

The  competence  of  the  Italian  courts  was  recognized  in  fact  in  the 
Martinucci-Theodoli  case  by  decision  of  the  Court  of  Appeal  of  Rome  of 
November  9,  1882  {Foro  italiano,  1883,  I,  603). 

In  case  it  should  be  necessary  to  punish  "common"  law  offenses  committed 
in  the  places  set  apart  for  the  use  of  the  Holy  See  by  people  not  connected  with 
the  government  of  the  Church,  the  jurisdiction  of  the  territorial  state  could 
not  be  questioned.  We  may  admit  that,  in  order  to  assure  the  freedom  of 
government  of  the  church,  those  who,  while  exercising  the  functions  assigned 
to  them,  have  abused  their  powers,  can  be  held  accountable  to  the  head  of  the 
Church;  but,  beyond  all  doubt,  private  persons  guilty  of  "common"  law 
oflfenses  could  not  be  tried  and  punished  by  the  Pope,  whence  the  necessity  of 
recognizing  the  criminal  jurisdiction  of  the  territorial  sovereignty  with  respect 
to  such  offenders. 

388.  The  violation  of  the  exterritoriahty  of  the  places  assigned 
to  the  Holy  See  must  be  considered  as  a  violation  of  the  rules  of 
international  law;  it  would  justify  the  collective  legal  defense  of 
that  law  on  the  part  of  other  states. 

Granted  that  the  independence  of  the  head  of  the  Church  and  the  exterri- 
toriality of  the  Holy  See  must  be  considered  as  based  on  "common"  inter- 
national law,  the  respect  or  violation  of  exterritoriality  cannot  be  conceived 
as  questions  of  territorial  interest. 


PLACE   WHERE   A    FOREIGN   ARMY    IS    QUARTERED 

389.  The  privilege  of  exterritoriality  should  be  assigned  to  the 
place  where  a  foreign  army  is  quartered,  and  the  territorial  state 
should  not  exercise  its  jurisdiction  in  such  a  place  as  long  as  the 
said  army  remains  there.     Jurisdiction,  both  as  regards  military 


EXTERRITOKIALITY  221 

and  "common"  law  offenses,  committed  within  the  limits  of  the 
encampment,  resides  exclusively  in  the  sovereignty  of  the  state 
whose  army  is  quartered  there. 

390.  The  said  exterritoriality  cannot  limit  the  rights  of  the 
territorial  state,  nor  the  exercise  of  its  jurisdiction  as  regards  per- 
sons belonging  to  the  foreign  army  who  have  violated  the  terri- 
torial laws  and  ordinances,  outside  the  limits  of  the  encampment. 

391.  The  territorial  authorities  are  bound  to  deliver  over  to  the 
military  authorities,  without  any  formality,  persons  belonging  to 
the  army,  who,  having  committed  an  offense  within  the  limits  of 
the  encampment,  have  taken  refuge  in  the  territory  of  the  state. 

392.  The  military  authorities  must  deliver  over  to  the  local 
authorities  persons  who  are  wanted  for  a  "common"  law  offense, 
and  have  taken  refuge  within  the  encampment. 


TITLE  XIII 

THE  LEGAL  EQUALITY  OF  STATES 

393.  Every  state  has  the  right  to  be  considered  in  international 
society  as  the  equal  of  others  in  all  matters  relating  to  its  legal 
capacity,  the  exercise  of  all  rights  derived  from  sovereignty  and 
the  fulfillment  of  its  obligations. 

394.  The  large  or  small  extent  of  territory,  population,  or  eco- 
nomic and  military  power  cannot  in  any  degree  affect  the  legal 
equality  of  states  as  regards  the  enjoyment  of  their  rights  and  the 
performance  of  their  duties. 

The  equality  of  states,  said  Sumner  in  the  United  States  Senate  on  March  23, 
1871,  is  a  principle  of  international  law,  just  as  the  equality  of  citizens  is  an 
axiom  of  our  declaration  of  independence.  One  cannot  do  to  a  small  and  weak 
people  what  could  not  be  done  to  a  great  and  powerful  people  or  what  we  would 
not  suffer  to  be  done  to  us. 

395.  The  natural  difference  between  the  white  and  colored  races 
cannot  serve  to  establish  a  substantial  difference  in  the  legal  condi- 
tion of  these  races  from  the  point  of  view  of  international  law. 

Nevertheless,  complete  legal  equality  must  be,  in  fact,  considered 
as  limited  to  the  states  which  admit  the  fundamental  legal  ideas 
that  are  indispensable  to  the  establishment  of  the  legal  community 
among  states. 

The  principle  of  the  legal  equality  of  all  the  independent  states  which  are 
members  of  the  international  society  must  on  the  whole  be  admitted  without 
question.  Yet,  in  order  that  such  equality  may  be  realized,  it  is  indispensable 
that  states  have  a  uniform  conception  of  the  principles  which  must  govern 
their  reciprocal  relations.  Now,  such  uniformity  in  the  legal  comnmnity  can 
be  considered  as  actually  effective  only  among  the  states  of  Europe,  among 
those  states  and  certain  states  of  America,  and  among  only  a  few  states  of  Asia 
and  Africa.  With  respect  to  the  former,  Japan,  now  considered  a  great  Power, 
must  be  noted,  while  Persia,  China,  Siam,  Thibet  and  Afghanistan  are  con- 
sidered in  some  respects  only  as  belonging  to  the  great  family.  In  Africa,  the 
Republic  of  Liberia  is  regarded  as  a  member  of  the  great  family  of  states. 

Compare  Oppenheim,  Op.  cit.,  pp.  162-164. 

396.  Every  act  of  jurisdiction  of  the  Great  Powers  with  regard 
to  smaller  states,  or  their  claim  of  any  right  to  settle  the  difficulties 

222 


THE   LEGAL   EQUALITY    OF    STATES  223 

in  which  these  states  are  concerned,  without  granting  them  the 
privilege  of  being  represented  or  of  asserting  their  rights,  must  be 
considered  as  contrary  to  the  legal  equality  of  states. 

No  free  and  sovereign  people  can  be  compelled  to  recognize  a  more  powerful 
state  as  their  superior.  After  the  Congress  of  Aix-la-Chapelle  of  1818,  the 
five  Great  Powers  of  Europe,  Austria,  France,  Great  Britain,  Prussia  and 
Russia  constituted  themselves  a  permanent  council  to  settle  European  affairs 
by  common  accord.  The  development  of  sounder  legal  views  and  the  progress 
of  civilization  have  broken  down  the  power  of  that  pentarchy  and  have  in- 
creased the  number  of  the  Great  Powers  by  admitting  Italy,  the  United  States 
of  North  America  and  still  more  recently,  Japan.  The  result  has  been  that, 
although  the  Great  Powers  have  not  renounced  the  exercise  of  their  right  of 
hegemony  in  questions  of  actual  general  interest,  yet,  whenever  in  the  settle- 
ment of  affairs  of  importance  some  one  or  other  of  the  minor  powers  have  been 
involved,  the  latter  have  been  asked  to  submit  their  views  to  the  Great  Powers 
without,  however,  being  permitted  to  cast  a  vote. 

From  the  view-point  of  law,  there  are  neither  great  nor  small  states.  Victor 
Hugo  wrote  with  reason:  "  The  greatness  of  a  people  is  no  more  measured  by 
their  number  than  the  greatness  of  a  man  is  measured  by  his  stature."  Letter 
of  Victor  Hugo  to  Pastor  Bost  de  Genfive,  Nov.  7,  1862.  Cf.  Nys,  Le  droit 
international,  II,  p.  194,  and  the  authorities  there  cited. 


INEQUALITY    IN    FACT 

397.  Legal  equality  between  states  cannot  imply  equality  in 
fact.  The  natural  development  of  each  state  and  the  increase  in 
power  resulting  from  the  constant  progress  of  intellectual  and 
moral  forces  and  the  resulting  inequalities  in  fact  must  be  respected 
as  the  natural  effects  of  legal  liberty. 

398.  The  effective  enjoyment  of  rights,  which  presuppose  cer- 
tain conditions  of  fact,  maj''  be  refused  to  states  which  do  not  at 
the  present  time  meet  the  factual  requirements. 

One  can  understand,  for  instance,  that  the  right  to  hoist  a  flag  can  only  be- 
long to  states  which  have  seacoasts.  Therefore,  Switzerland  was  wrong  in 
assuming  the  right  to  fly  the  federal  maritime  flag  on  the  high  seas. 

399.  A  state  which,  by  reason  of  traditional  prejudices,  of  its 
internal  organization  or  its  customs  and  religious  creed,  is  not 
competent  to  fulfill  its  international  duties  towards  other  states, 
cannot  request  the  full  enjoyment  of  international  rights  on  a  foot- 
ing of  complete  equality;  that  would  require  a  modification  of  its 
internal  organization  so  as  to  offer  effective  guaranties  for  the 
fulfillment  of  its  duties  towards  other  states. 

400.  Yet,  states  which  entertain  de  facto  relations  with  another 


224  INTERNATIONAL   LAW    CODIFIED 

state  whose  legal  equality  cannot  be  recognized,  ought  always  to 
comply  with  the  rules  and  stipulations  of  conventions.  As  for 
the  rules  of  "common"  international  law,  they  ought  to  observe 
those  which,  considering  the  social  conditions  of  the  uncivilized 
state,  must  be  deemed  necessary  for  the  safeguard  of  pubUc  and 
private  rights. 

RESPECT  OF  MORAL  PERSONALITY  AND  HONOR 

401.  All  states,  great  and  small,  empires,  kingdoms,  republics, 
principalities,  or  duchies,  are  equally  entitled  to  the  respect  of  their 
personality  and  moral  dignity.  Each  has  the  right  to  require  due 
satisfaction  in  case  its  personality  or  dignity  be  violated. 

402.  The  honors  due  to  a  state  and  to  the  sovereign  who  repre- 
sents it,  in  view  of  his  title  and  international  position,  must  be 
regulated  in  accordance  with  international  ceremonial  and  appli- 
cable agreements. 

403.  No  rule  of  international  ceremonial,  whether  resulting  from 
custom  or  treaties,  can  be  observed  if  it  is  offensive  to  the  moral 
dignity  of  a  state. 

404.  Every  state  has  the  right  to  assume  the  title  which  corre- 
sponds to  its  importance  and  international  position.  The  highest 
title  cannot,  however,  entitle  a  state  to  a  superior  legal  position, 
but  only  to  the  right  to  such  honors  as  are  recognized  by  interna- 
tional usage  or  by  treaties. 

In  the  event  of  a  change  in  the  original  title  of  a  state,  the  recog- 
nition of  other  governments  must  be  deemed  necessary  in  order 
that  the  new  title  may  be  admitted  in  international  relations. 

405.  Every  sovereign  in  his  diplomatic  relations  with  other 
sovereigns  has  the  right  to  use  his  title  and  to  require  that  it  be 
used  by  others. 

As  regards  correspondence,  the  forms  established  by  diplomatic 
usage  must  be  observed. 

406.  It  cannot  be  considered  as  contrary  to  the  dignity  of  states 
to  agree  by  common  consent  to  make  use,  in  diplomatic  corre- 
spondence, of  the  French  language,  which  is  universally  known. 
On  the  contrary,  the  attempt  of  a  government  to  impose  the  use  of 
its  language  on  one  or  more  countries  in  diplomatic  acts,  would  be 
derogatory  to  that  dignity. 


THE  LEGAL   EQUALITY   OF  STATES  225 


PRECEDENCE   AND   RANK 

407.  No  state  can  claim  a  right  of  precedence  over  other  states, 
so  as  thus  to  estabhsh  its  legal  superiority.  All  questions  relating 
to  precedence  and  rank  must  be  regulated  in  conformity  with 
diplomatic  ceremonial  and  usage.  These  questions  must  be  con- 
sidered from  the  point  of  view  of  the  comitas  gentium. 

Controversies  relating  to  precedence  and  rank  were  agitated  at  great  length 
as  late  as  the  18th  century.  History  abounds  with  examples  of  ardent  contro- 
versies and  conflicts  due  to  claims  to  precedence  on  the  part  of  certain  states. 
In  the  16th  century,  one  of  the  most  spirited  disputes  arose  among  the  diplo- 
matic representatives  assembled  at  the  Council  of  Trent.  In  the  17th  centur\-, 
a  celebrated  dispute  arose  at  London  between  the  Comte  d'Estrade,  the  French 
Ambassador  and  Baron  de  Divatteville,  the  Spanish  Ambas.sador.  Again,  in 
the  18th  century,  a  notorious  dispute  took  place  between  the  British  Ambassa- 
dor, Lord  Kimoul  and  the  French  Ambassador,  Comte  de  Merle.  The  efforts 
made  at  the  Congress  of  Aix-la-Chapelle  to  settle  such  controversies  failed 
owing  to  the  vanity  and  customs  of  Courts.  In  the  19th  century,  an  unsuc- 
cessful attempt  was  made  at  the  Congress  of  Vienna  (1815)  to  determine  the 
rank  of  states.  Regulations,  however,  were  adopted  to  determine  the  rank  of 
diplomatic  agents  (March  19,  1815).  For  the  order  of  precedence  at  the  time 
of  the  signing  of  the  final  act  of  the  Congress  of  Vienna,  it  was  agreed  to  adopt 
the  alphabetical  order  according  to  the  initial  letter  of  the  name  of  each  state. 


RULES   OF   DIPLOMATIC    USAGE 

408.  All  the  states  whose  sovereign  has  the  title  of  king  are  to 
be  considered  of  royal  rank.  The}^  are  on  an  equality  with  those 
having  imperial  rank.  These  two  classes  of  states  have  the  right 
to  send  and  receive  ambassadors,  to  make  use  of  royal  emblems, 
crowns,  scepters  and  coats  of  arms.  For  the  subscription  of  trea- 
tises, precedence  among  them  is  fixed  by  alphabetical  order. 
With  respect  to  their  representatives,  rank  and  precedence  are  to 
bo  fixed  according  to  the  date  of  the  presentation  of  their  creden- 
tials. 

409.  Republics  which  have  royal  rank  must  be  considered  in  the 
same  position  as  monarchies  and  other  sovereign  states  and  sub- 
ject to  the  same  rules  of  diplomatic  ceremonial, — these  rules  in 
their  application  being  considered  independent  of  the  constitu- 
tional differences  in  states. 

410.  States  not  of  royal  rank  must  be  considered,  from  the  point 
of  view  of  precedence,  as  inferior  to  monarchies  and  any  other 
.states  of  royal  rank. 


226  INTERNATIONAL   LAW   CODIFIED 

411.  Semi-sovereign  or  dependent  states,  by  reason  of  vassalage, 
protectorate  or  feudal  relations,  must  admit  the  precedence  both 
of  the  states  under  whose  dependency  they  come  and  of  other 
sovereign  states. 

A  relation  of  dependency  naturally  determines  the  inferiority  of  semi- 
sovereign  or  protected  states.  Therefore,  the  principality  of  Bulgaria  had  to 
submit  to  the  precedence  of  Turkey;  the  same  is  true  of  the  German  princes 
with  respect  to  the  Emperor. 

At  the  Peace  Conference  of  The  Hague  in  1899,  all  the  states  represented 
signed  according  to  alphabetical  order.  Bulgaria  as  a  vassal  state  of  Turkey, 
signed  after  all  the  other  powers. 

412.  The  Pope,  as  head  of  the  Catholic  Church,  may  enjoy 
precedence  in  his  relations  with  other  monarchs  and  princes  of 
Catholic  states,  but  not  in  his  relations  with  Russia  and  Protestant 
states. 

The  Pope,  although  he  may  enjoy  sovereign  honors  under  article  3  of  the 
Italian  law  of  May  13,  1871,  in  regard  to  the  prerogatives  of  the  Sovereign 
Pontiff  and  the  Holy  See,  is  not  in  the  same  position  as  when  he  was  King  of 
the  Pontifical  States.  Since  he  had  lost  political  sovereignty,  he  could  no 
longer  invoke  the  application  of  the  rules  of  precedence  applicable  between 
the  sovereigns  of  states.  Article  3  of  the  aforesaid  law,  it  may  be  observed,  reads 
as  follows:  "The  ItaUan  government  pays  to  the  Sovereign  Pontiff  on  the 
territory  of  the  kingdom  the  sovereign  honors  and  upholds  the  honorary  prec- 
edences accorded  him  by  Catholic  sovereigns."  It  is  not  possible  to  claim 
under  this  article  that  when  the  Pope  wishes  to  take  part  in  a  congress  as  head 
of  the  Catholic  Church,  he  can  avail  himself  of  the  right  of  precedence  estab- 
lished in  his  favor  when  he  had  the  dual  character  of  sovereign  of  the  Pontifical 
State  and  head  of  the  Catholic  Church,  since  Italy  undoubtedly  could  not 
by  its  internal  legislation  bind  other  states. 

At  any  rate,  it  is  quite  evident  in  our  opinion  that  if  the  Pope  should  partici- 
pate in  an  international  meeting  of  political  sovereigns,  the  rules  which  de- 
termine precedence  among  states  could  not  be  applied.  Undoubtedly,  the 
Pope  cannot  be  considered  as  a  political  sovereign.  It  must  indeed  be  ad- 
mitted that  he  occupies  a  quite  exceptional  position.  The  respect  due  the 
head  of  the  Church  by  reason  of  the  high  authority  he  possesses  might  even 
lead  Protestant  states  to  grant  him  the  precedence  he  has  always  enjoyed,  not 
as  king  of  the  small  state  which  the  Papal  States  used  to  be,  but  as  Sovereign 
Pontiff.  In  this  way,  placing  him  outside  the  relations  established  between 
political  sovereigns,  his  true  position  of  precedence  would  be  determined  by 
the  honorary  sovereignty  which  is  granted  to  him. 


MARITIME    CEREMONIAL 

413.  Every  state  has  the  right  to  fix  the  rules  of  maritime  cere- 
monial which  national  vessels  must  observe  toward  one  another 
and  toward  foreign  vessels;  but  they  cannot  require  the  reciprocal 


THE    LEGAL   EQUALITY    OF   STATES  227 

adoption  of  these  rules  by  other  states  unless  there  is  an  express 
convention. 

414.  Every  state  can  declare  the  observance  of  the  maritime 
ceremonial  thus  established  obligatory  upon  ships  which  cross  its 
territorial  waters  or  enter  its  ports. 

415.  A  sovereign  can  never  legitimately  impose  on  foreign  vessels 
entering  his  territorial  waters,  a  form  of  salute  which,  from  a 
general  standpoint,  may  be  regarded  as  humiliating.  Such  would 
be  the  case  of  a  salute  rendered  by  lowering  the  flag  or  of  any  other 
form  of  salute  which  might  imply  an  act  of  subjection.  Such  also 
would  be  a  salute  by  salvos  of  artillery,  when  there  is  no  obligation 
to  return  them. 

416.  The  rules  governing  the  salute  of  ships  meeting  on  the 
high  seas  and  all  maritime  ceremonial  should  be  established  by 
common  accotd;  in  the  absence  of  such  rules,  those  based  on  cus- 
tomary law  and  on  the  comitas  gentium  should  be  observed, 

417.  When  the  rules  of  ceremonial  to  be  reciprocally  observed 
are  established  by  treaty,  their  non-observance  may  justify  a 
protest  and  give  a  right  to  demand  explanations. 

418.  Non-observance  of  the  ceremonial  adopted  by  common 
accord  is  not  sufficient  in  itself,  however,  to  give  rise  to  the  pre- 
sumption of  an  intention  to  offend  the  foreign  state,  unless  well- 
established  precedents  and  well-defined  circumstances  lead  to  a 
contrary  conclusion. 

419.  In  the  absence  of  an  agreement  relating  to  the  salute  of 
vessels  meeting  on  the  high  seas,  the  rules  sanctioned  by  usage 
must  be  observed.    These  rules  are  as  follows: 

Merchant  vessels  meeting  on  the  high  seas  are  not  obliged  to 
salute. 

War  vessels  must  salute.  The  ship  of  lower  rank  must  salute 
first.  When  the  ships  are  of  equal  rank,  the  one  to  salute  first,  is 
the  one  sailing  leeward. 

A  war  vessel  must  salute  first  when  nearing  a  fortress  or  a  port  or 
when  leaving  it,  when  meeting  a  squadron,  when  meeting  a  ship 
having  on  board  a  sovereign  or  member  of  a  royal  family  or  an 
ambassador. 

An  auxiliary  squadron  must  salute  a  main  squadron  first. 

420.  A  salute  given  by  salvos  of  artillery  must  be  returned  gun 
for  gun;  but  a  vessel  of  superior  rank,  which  responds  to  the  salute 


228  INTERNATIONAL  LAW   CODIFIED 

of  one  of  inferior  rank,  may  fire  one  gun  less.  This  practice,  how- 
ever, could  not  be  impelled  by  the  consideration  of  superiority 
in  maritime  power  of  the  state  to  which  a  ship  of  equal  rank  be- 
longs. 

421.  During  soleumities,  court  functions  and  national  mourn- 
ing, foreign  war  vessels  should  observe  the  rules  established  by  the 
regulations  of  the  state  to  which  the  port  belongs.  Commanders 
of  vessels  who  believe  that  they  ought  not  or  cannot  conform  to 
them  should  leave  the  port. 

POLITICAL    EQUILIBRIUM 

422.  The  equilibrium  of  forces  and  material  power  of  states  can- 
not be  deemed  necessary  to  assure  the  protection  of  their  rights 
and  their  security. 

Nevertheless,  the  legal  equilibrium  whose  purpose  must  be  to 
insure  in  the  relations  of  states  the  preponderance  and  sovereign 
empire  of  law,  should  be  considered  as  indispensable. 

The  conception  of  political  equilibrium  was  understood  by  the  older  thinkers 
as  the  proportional  distribution  of  the  material  forces  of  states  to  safeguard 
their  security  and  their  reciprocal  rights.  This  conception  was  brought  about  by 
the  Abbe  de  Saint-Pierre  in  his  Projct  de  traile  pour  rendre  la  paix  perpetuelle,  and 
was  considered  as  one  of  the  requirements  to  assuring  peace  and  prevent- 
ing a  state,  by.  reason  of  the  increase  of  its  territorial  possessions,  from  dictating 
its  laws  to  all  the  other  powers.  Article  2  of  the  Treaty  of  Utrecht  of  July  13, 
1713, contains  the  expression  of  Justum  poleniiae  cquilihrium.  F^n^lon  (Oeuvres, 
V.  Ill,  p.  361,  edition  of  183-5)  demonstrated  the  necessity  of  checking  the 
increasing  power  of  the  House  of  Austria  under  Charles  the  Fifth,  and  from 
that  time  up  to  the  present  day  the  pohcy  of  statesmen  has  constantly  been  to 
maintain  the  so-called  balance  of  power  and  to  work  towards  its  restoration 
when  disturbed  by  the  growth  of  territorial  possessions  and  conquests.  At 
the  Congress  of  Vienna,  the  repartition  of  territorial  possessions  was  justified 
by  the  idea  of  maintaining  the  equilibrium.  The  dismemberment  of  Poland 
has  been  justified  on  the  same  grounds. 

In  like  manner,  the  annexation  of  Nice  and  Savoy  was  claimed  by  reason  of 
the  necessity  of  restoring  the  equilibrium  which  was  broken  by  the  formation 
and  extension  of  the  Kingdom  of  Italy.  The  preservation  of  Turkey  has 
likewise  been  held  indispensable  for  the  so-called  balance  of  power,  which  most 
certainly  would  be  disturbed  if  the  territorial  possessions  of  the  Porte  in  Eu- 
rope were  to  be  apportioned  among  those  who  covet  them.  For  these  reasons, 
the  statesmen  of  the  Great  Powers  have  agreed  to  maintain  an  order  of  things 
which  surely  could  not  be  justified.  Impelled  by  the  fear  of  the  unavoidable 
upsetting  of  the  balance  of  power,  and  of  the  diflficulty  of  restoring  it,  they  have 
preferred  to  maintain  a  state  of  affairs  which  certainly  does  not  reflect  credit 
either  on  Christianity  or  civilization.    When  the  time  came,  the  great  Powers 


THE   LEGAL    EQUALITY    OF   STATES  229 

were  powerless  to  prevent  the  acts  which  have  materially  changed  the  position 
of  Turkey. 

Useful  information  is  to  i^e  found  in  the  article  by  Nys,  La  theorie  de  Vequi- 
libre  europeen,  Revue  de  Droit  iidernalinnal,  v.  XVI,  1893,  and  in  the  work  by 
Stieglitz,  De  Vequilibre  politique,  du  legilimisme  et  du  principe  des  nationalites 
(in  Russian)  1889-1892,  French  translation,  1893. 

423.  The  freedom  which  every  state  possesses  to  provide  for  the 
increase  of  its  powers,  cannot  be  hmited  by  reason  of  the  so-called 
balance  of  power,  if  such  increase  does  not  interfere  with  the  right 
of  other  states  and  does  not  violate  the  rules  of  international  law. 

It  is  the  privilege  of  the  states  which  consider  themselves  men- 
aced by  the  constant  increase  of  power  of  another  state,  to  provide 
for  their  security  and  safety  and  to  conclude  alliances  with  one 
another  so  as  to  unite  their  forces  to  resist  the  attacks  of  the  grow- 
ing power. 

424.  It  must  always  be  considered  necessary  for  the  orderly 
existence  of  states  in  the  international  society,  to  determine  by 
legal  rules  the  just  limit  of  action  of  each  of  them  and  to  assure 
legal  protection  for  the  rules. 

425.  Every  state  which,  by  misuse  of  its  power,  would  assure 
its  supremacy  in  disregard  of  the  rights  of  other  states,  or  would 
extend  its  territorial  possessions  in  violation  of  international  law, 
would  justify  resistance  on  the  part  of  other  states,  which  might 
with  reason  consider  such  an  attempt  to  secure  supremacy  as  a 
menace  to  their  independence  and  as  derogatory  to  the  legal 
equilibrium  which  is  indispensable  to  the  existence  of  interna- 
tional society. 

A  certain  equilibrium  must  be  considered  indispensable  to  assure  the  exist- 
ence of  international  society.  We  believe,  however,  that  such  an  equilibrium 
will  be  realized  only  when,  in  that  society,  the  preponderance  of  right  is  sub- 
stituted for  that  of  force.  With  a  view  to  justifying  certain  pretensions  to 
territorial  aggrandizement,  diplomacy  sought  to  have  them  considered  as 
essential  for  the  maintenance  of  the  equilibrium,  and  so  in  various  cases  the 
necessity  of  compensation  among  states  was  advocated.  Thus,  in  the  18th 
century,  they  tried  to  justify  the  partition  of  Poland  by  this  theory  of  com- 
pensation, which  was  also  sanctioned  in  1878  at  the  Congress  of  Berlin,  in 
order  to  recognize  the  privileged  position  of  Austria  with  respect  to  Bosnia 
and  Herzegovina.  While  we  believe  that  a  certain  equilibrium  is  indispensable 
for  insuring  the  rational  organization  of  international  society,  we  cannot, 
however,  admit  that  it  may  consist  in  the  equalization  of  material  forces  or  in 
their  artificial  distribution.  Equilibrium  cannot  proceed  from  artificial  meas- 
ures; it  can  f)ecome  efTective  only  when  law  becomes  preponderant  in  inter- 
national society  and  when  its  legal  protection  is  effectively  assured.     We  (;an- 


230  INTERNATIONAL  LAW   CODIFIED 

not  conceive  the  realization  of  political  equilibrium  in  international  society 
until  Mirabeau's  prophecy  comes  true:  le  droit  soil  le  sonverain  du  monde. 

426.  It  is  the  duty  of  states,  in  order  to  insure  the  existence  of 
general  peace,  to  fix  by  common  agreement  the  limit  of  armaments, 
so  as  to  prevent  the  unjustifiable  increase  of  the  military  forces  of 
any  one  of  them  from  compelling  the  others  to  perfect  their  mili- 
tary establishment  and  so  cause  an  economic  and  moral  disturbance 
in  all  countries. 


1 


I 
I 


TITLE  XIV 

REPRESENTATION  OF  STATES 

TO   WHOM    SHOULD   REPRESENTATION    BE   ASSIGNED 

427.  The  representation  of  a  state  in  its  relations  with  other 
states  should  be  assigned  to  the  person  or  persons  to  whom  its 
constitution  actually  entrusts  the  exercise  of  governmental  power. 
These  are: 

a.  The  sovereign  or  head  of  the  state; 

b.  The  persons  who,  by  constitutional  law,  exercise  at  the  time 

the  powers  of  sovereignty; 

c.  Diplomatic  agents. 

THE   SOVEREIGN   AND   HIS   FAMILY 

428.  The  person  who  reigns  and  governs  as  sovereign  is  in  full 
right  the  legal  representative  of  the  state  and  may,  as  such,  exer- 
cise in  international  relations  the  pubhc  power  which  is  entrusted 
to  him  by  the  constitution. 

There  is  no  difference  in  this  respect  whether  the  head  of  state 
be  king,  emperor,  president  or  prince. 

429.  The  right  of  representation  must  be  granted  in  like  manner 
to  any  person  who  in  fact  is  in  effective  possession  of  the  sovereign 
power.  As  such,  he  may  exercise  all  the  rights  attaching  to  this 
power,  with  respect  to  the  states  which  have  recognized  the  actual 
order  of  things  and  entered  into  relations  with  the  new  government. 

430.  He  who  in  fact  loses  the  exercise  of  sovereign  power  ceases 
to  represent  the  state  in  his  acts,  until  he  has  recovered  the  free 
exercise  of  sovereignty. 

History  affords  us  several  instances  of  sovereigns  deprived  of  their  supremo 
authority.  Even  when  this  is  toin{)orary,  exi)odiency  may  guide  rulers  to  de- 
cide whether  or  not  they  should  continue  to  bc^stow  on  the  fallen  sovereign  tiic 
titles  and  honors  which  v/c.ro.  previf)usly  accorded  him;  hut  as  regards  the  logit- 

231 


232  INTERNATIONAL   LAW    CODIFIED 

imate  representation  of  the  state  in  its  international  relations,  they  cannot 
admit  that  this  sovereign  may  represent  the  state,  when  as  a  matter  of  fact  he 
is  deprived  of  public  power  and  of  his  legal  position  as  head  of  the  government. 
In  international  relations,  the  head  of  a  state  is  he  qui  de  facto  regit:  it  is  he, 
therefore,  who  must  be  considered  the  legal  representative  of  the  state  with 
respect  to  other  governments  which  intend  to  maintain  international  relations 
with  it  or  wish  to  renew  such  relations  after  their  temporary  interruption. 

431.  In  all  his  acts  as  representative  of  the  state,  the  ruler  must 
be  deemed  invested  with  sovereignty  and  subject  as  such  to  in- 
ternational law. 

432.  The  persons  who  belong  to  the  family  of  the  sovereign  can- 
not share  in  the  enjoyment  of  the  rights  which  are  assigned  to  him 
as  representative  of  the  state.  They  must,  however,  be  considered 
under  the  protection  of  international  law  and  enjoy  the  rights  and 
prerogatives  which,  according  to  custom  and  international  usage, 
belong  to  the  members  of  reigning  sovereign  families. 


MINISTER   OF   FOREIGN   AFFAIRS 

433.  In  the  exercise  of  his  functions  and  duties  under  the  law  of 
the  state,  the  minister  of  foreign  affairs  represents  the  state  in  his 
acts. 

He  is  considered  as  invested  with  his  powers  as  such,  from  the 
day  he  sends  notice  of  his  appointment  to  the  members  of  the  diplo- 
matic corps  accredited  to  the  head  of  the  state,  and  to  the  diplo- 
matic agents  and  consuls  of  his  own  country  accredited  to  foreign 
governments. 

434.  The  duties  of  the  minister  of  foreign  affairs  are  determined 
by  the  law  of  each  state. 

He  must  be  considered  in  principle  as  authorized  to  maintain 
relations  with  the  representatives  of  foreign  states,  and  in  the  name 
of  his  government  to  issue  communications  and  declarations  to  the 
said  representatives;  to  negotiate  with  them  treaties  of  alliance 
and  to  appoint  the  persons  delegated  especially  to  negotiate 
treaties  of  commerce  and  extradition,  etc. ;  to  prepare  the  instruc- 
tions issued  to  these  persons;  to  provide  for  the  protection  of 
citizens  abroad  and  to  safeguard  abroad  the  interests  of  citizens 
and  of  the  state;  and  to  perform,  in  general,  all  acts  which  under  the 
law  of  the  state  or  diplomatic  usage,  must  be  performed  by  the 
minister  of  foreign  affairs. 


REPRESENTATION    OF   STATES  233 

DIPLOMATIC    AGENTS 

435.  Persons  who  are  assigned  the  mission  of  maintaining  diplo- 
matic relations  between  the  state  they  represent  and  the  one  to 
which  they  are  officially  accredited  are  diplomatic  agents.  They 
may  be  either  ambassadors  ordinary  or  extraordinary,  public 
ministers,  envoys  extraordinary  or  persons  entrusted  with  special 
missions. 

The  category  of  persons  chosen  to  represent  the  state  in  international  re- 
lations must  serve  to  determine  their  hierarchical  position,  as  well  as  their 
rights  and  prerogatives  by  reason  of  official  hierarchy.  The  category  of 
pubhc  ministers  comprises  a  first  and  a  second  class:  (1)  resident  ministers  and 
(2)  ministers  extraordinary  or  temporary  envoys  sent  on  special  missions. 
The  difference  in  their  position,  as  regards  the  object  of  their  appointment  and 
their  hierarchical  rank,  may  have  the  effect  of  assigning  to  them  certain  rights 
and  prerogatives  under  the  diplomatic  ceremonial  and  to  fix  their  position  as 
members  of  the  diplomatic  corps;  but  it  does  not  affect  their  legal  status,  in 
so  far  as  in  their  acts  they  represent  the  state. 

In  the  class  of  envoys  extraordinary  may  be  put  all  persons  who  have  the 
temporary  mission  of  representing  the  state.  Thus,  commissioners  charged 
with  representing  their  government  to  negotiate  certain  special  matters,  and 
also  consuls  invested  temporarily  with  a  diplomatic  mission  may  be  included 
in  this  class. 

436.  It  is  the  duty  of  the  sovereign  of  every  state  to  determine 
the  class  and  rank  of  the  diplomatic  agent  accredited  by  him  to  a 
foreign  sovereign. 

Whatever  may  be  the  hierarchical  position  of  the  accredited 
person,  he  must  be  considered  as  the  legal  representative  of  the 
state  as  regards  acts  performed  by  him  by  virtue  of  his  commission. 
This  arises  from  the  fact  that  the  sovereign  commissioned  him  to 
represent  the  state  officially. 

Under  the  regulations  drawn  up  at  Vienna,  March  19,  1815,  and  completed 
later  at  Aix-la-Chapelle,  November  21,  1818,  diplomatic  agents  were  divided 
into  four  cla.sses.  The  first  class  comprised  ambassadors  and  legates  a  or  de 
latere,  envoys  extraordinary  of  the  Pope.  The  second  class  was  composed  of 
ministers  plenipotentiary,  envoys  extraordinary  and  internuncios  of  the  Pope. 
Ministers  resident  formed  the  third  class.  Charges  d'aiTaires  constituted 
the  fourth  class.  However,  this  classification  seems  to  us  of  no  importance  so 
far  as  the  representation  of  the  state  is  concerned.  In  effect,  representation 
depends  only  on  commission  and  mandate,  not  on  rank,  which  is  important 
only  for  the  determination  of  hierarchy  and  diplomatic  ceremonial.  There- 
fore, the  representative  character  which  is  attributed  to  agents  of  the  first 
class,  must  be  understood  as  meaning  that  ambassadors,  by  virtue  of  the  high 
dignity  with  which  they  are  invested,  can  represent  the  sovereign  personally 
and  consequently  enjoy  certain  special  prerogatives. 

Compare  rule  402. 


234  INTERNATIONAL   LAW   CODIFIED 

HOW  THE  CHARACTER  OF  REl>RESENTATIVE  OF  THE  STATE  IS  ESTAB- 
LISHED 

437.  The  public  character  of  representative  of  the  state  is 
established  by  the  appointment  of  one  or  more  persons  as  such,  by 
the  sovereign  of  the  state  who  sends  them,  and  through  the  official 
notification  made  to  the  government  to  which  the  agent  is  accred- 
ited, which  notification  is  expressly  or  tacitly  accepted  by  such 
government. 

WHO  HAS  THE  RIGHT  TO   SEND   DIPLOMATIC   AGENTS 

438.  The  right  to  be  represented  by  diplomatic  agents  is  pos- 
sessed by  every  independent  state  which,  as  a  person  in  the  in- 
ternational society,  actually  maintains  relations  with  other  states. 

This  right  can  equally  be  attributed  to  legal  entities  qualified 
as  such  and  to  associations  whose  international  personality  is 
recognized. 

Compare  rules  81-82. 

Under  these  rules,  it  must  be  admitted  that,  should  several  independent 
states  be  united  in  a  "union"  established  for  a  well-defined  purpose,  and  should 
the  international  personality  of  this  "union"  be  recognized,  there  could  be  an 
international  representation  of  the  states  thus  limited  within  the  scope  of  their 
union.  The  North  Germanic  Confederation,  founded  in  1867,  is  an  example  of 
this  sort  of  union  and  representation.  A  federative  empire  which  had  not 
the  unitary  form  (such  as  the  German  Empire  in  1871),  and  allowed  the  per- 
sonality of  the  confederated  states  to  subsist,  could  also  be  entitled  to  a  dual 
representation  corresponding  to  its  dual  personality. 

439.  The  right  to  maintain  international  relations  through  dip- 
lomatic agents  may  be  accorded  a  government  arising  out  of  a 
revolution  or  civil  war,  whenever  it  is  found  to  be  in  effective 
possession  of  public  power  and  sovereign  functions  and  has  been 
recognized  by  foreign  governments. 

While  it  must  be  left  to  the  judgment  of  every  government  whether  or  not 
it  should  enter  into  diplomatic  relations  with  a  government  which  was  con- 
stituted as  a  result  of  a  revolution  or  civil  war,  political  wisdom  must  impel 
it  not  to  receive  diplomatic  agents  until  the  new  government  is  not  only  in  de 
facto  possession  of  the  rights  of  sovereignty,  but  also  presents  the  stability  re- 
quired in  order  that  it  may  be  considered  capable  of  assuming  the  responsibil- 
ity both  for  its  own  acts  and  those  of  the  people  it  governs. 

440.  It  is  the  privilege  of  the  government  of  every  state  to 
decide  with  absolute  freedom  whether  it  should  establish  diplo- 


REPRESENTATION   OF   STATES  235 

matic  relations  with  the  government  of  a  state  newly  constituted 
or  continue  relations  with  the  dispossessed  sovereign. 

In  principle,  we  cannot  consider  diplomatic  relations  with  the 
government  of  a  new  state  to  be  established  in  good  faith  until 
that  state  presents  sufficient  guaranties  of  stability  and  the  former 
sovereign  is  no  longer  possessed  of  sufficient  means  to  restore  his 
authority. 

441.  The  sovereign  who  is  considered  as  effectively  ousted, 
cannot  assume  the  right  to  maintain  relations  with  other  states 
through  diplomatic  agents  appointed  by  him,  nor  to  confer  on  these 
agents  the  right  to  represent  the  state. 

442.  The  title  of  diplomatic  agents  cannot  be  applied  to  com- 
missioners or  agents  sent  by  a  revolutionary  party  during  a  civil 
war  to  deliver  communications  to  foreign  governments. 

The  right  of  legation  can  be  granted  only  to  the  one  qui  de  facto 
regit. 

ACCEPTANCE  OF  THE   DIPLOMATIC   AGENT  APPOINTED 

443.  A  state  which  has  consented  to  establish  or  to  continue  to 
maintain  diplomatic  relations  with  another  state  cannot  in  prin- 
ciple refuse  to  accept  the  diplomatic  agent  appointed. 

444.  It  must  be  considered  in  conformity  with  sound  interna- 
tional custom  to  accredit  as  a  diplomatic  agent  only  a  persona 
grata. 

The  previous  consent  of  the  person  invested  with  the  character 
of  diplomatic  agent  cannot  be  considered  as  necessary  to  deter- 
mine his  status.  Nevertheless,  a  government  may  refuse  to  re- 
ceive as  a  diplomatic  agent  a  person  who  is  a  citizen  of  the  state, 
or  who,  for  serious  reasons  may  be  considered  as  unfit  to  maintain 
good  relations  between  the  two  governments. 

In  principle,  it  must  be  admitted  that  the  appointment  of  a  diplomatic  agent 
is  an  act  of  sovereignty,  and  that  it  cannot  be  subordinated  to  the  condition  of 
previous  consent. 

But  since  the  purpose  of  permanent  legations  is  to  maintain  good  relations 
between  the  two  governments  and  since  this  cannot  be  done  by  persons  who  are 
not  acceptable  and  who  do  not  inspire  full  confidence,  the  more  general  prac- 
tice is  for  any  government,  before  appointing  the  person  whom  it  wishes  to 
accredit  to  another,  to  sound  the  latter  on  the  matter  and  obtain  its  consent. 
This  is  what,  in  diplomatic  language,  is  called  aggreation.  It  cannot,  however, 
be  considered  as  indispensable  and  a  previous  condition  to  the  exercise  of  the 
right  of  legation.    It  is  to  be  noted,  however,  that  as  reciprocal  consent  must 


236  INTERNATIONAL   LAW    CODIFIED 

always  be  deemed  requisite  for  creating  and  maintaining  legations,  a  govern- 
ment, even  after  its  previous  agreement,  may  revoke  its  consent  and  refuse 
to  receive  or  to  keep  an  envoy  on  particular  grounds.  If,  on  the  other  hand, 
such  refusal  were  arbitrary,  obstinate  and  unjustified,  it  is  obvious  that  good 
diplomatic  relations  might  be  impaired  and  even  interrupted. 

445.  The  sending  without  previous  consent  of  a  diplomatic 
agent  may  be  considered  as  an  unfriendly  act,  but  the  well-founded 
refusal  to  receive  or  retain  a  given  person  as  diplomatic  agent 
cannot  be  so  considered. 

446.  The  refusal  to  receive  an  accredited  diplomatic  agent  must 
be  considered  as  effectively  depriving  him  of  his  public  character 
not  only  with  respect  to  the  state  to  which  he  is  accredited  but 
to  third  states  as  well. 

An  unreasonable  refusal  may  justify  the  breaking  off  of  ordinary 
diplomatic  relations  as  the  government  may  have  good  reasons  for 
not  appointing  another  person  to  represent  it. 

These  rules  are  based  on  the  idea  that  the  sending  of  a  diplomatic  agent  is 
an  act  of  sovereignty,  and  must  be,  consequently,  exercised  with  the  fullest 
independence.  It  is  only  according  to  the  comitas  gentium,  that  the  mainte- 
nance of  diplomatic  relations  presupposes  the  express  or  tacit  consent  of  the 
state  to  which  the  diplomatic  agent  is  sent.  Consequently,  in  the  absence  of 
such  previous  general  or  special  consent,  the  government  may  always  refuse 
to  receive  a  diplomatic  envoy  charged  with  a  special  mission,  or  refuse  on  good 
grounds  to  continue  to  negotiate  with  the  diplomatic  agent  already  accredited. 

POWERS   OF   A    DIPLOMATIC   AGENT 

447.  The  powers  of  a  diplomatic  agent  as  representative  of  the 
state  which  has  accredited  him  are  those  specified  in  his  creden- 
tials, indicating  the  object  and  scope  of  his  mission.  These  powers 
can  be  better  fixed  and  specified  in  the  official  notes  addressed  and 
communicated  to  the  foreign  sovereign. 

448.  The  instructions  given  a  diplomatic  agent  in  his  creden- 
tials, and  specified  and  determined  by  means  of  notes  communi- 
cated in  diplomatic  form  to  the  foreign  sovereign  and  government, 
cannot  be  considered  as  modified  by  secret  instructions  given  by  a 
government  to  its  diplomatic  agent,  but  not  communicated  offi- 
cially to  the  foreign  government. 

449.  The  formalities  to  be  observed  in  the  presentation  of  cre- 
dentials and  the  communication  of  notes  and  official  acts  are  de- 
termined by  the  ceremonial  and  rules  of  diplomatic  intercourse. 

450.  The  diplomatic  agent,  in  all  acts  performed  within  the 


REPRESENTATION   OF   STATES  237 

scope  of  his  instructions,  as  they  appear  from  his  credentials  and 
the  notes  officially  communicated,  legally  represents  the  state 
which  has  accredited  him.  Therefore,  the  obligations  which  he 
contracts  by  virtue  of  his  instructions,  must  be  considered  as 
contracted  in  the  name  of  the  state  he  represents,  subject  always, 
for  their  effectiveness,  to  the- obligation  of  ratification  by  the 
sovereign  or  the  person  who  has  that  power  under  the  constitution. 

RESPONSIBILITY   OF  THE   DIPLOMATIC   AGENT 

451.  The  diplomatic  agent  is  not  personally  responsible  toward 
the  other  state  or  states  for  what  he  does  as  representative  of  the 
state.  The  government  which  accredited  him  is  responsible  for 
such  acts.  This  responsibilit}^  must  be  determined  and  fixed  in 
accordance  with  the  rules  of  international  law  applicable  to  the 
rcsponsibilit}^  of  states  in  their  reciprocal  relations. 

452.  In  all  matters  relating  to  the  fulfillment  of  his  mission,  the 
diplomatic  agent  is  entitled  to  personal  inviolability,  in  peace  as 
well  as  in  war.  When  war  has  been  declared,  however,  he  can 
enjoy  inviolability  only  during  the  time  necessary  for  him  to  leave 
his  residence  and  return  to  his  own  country  or  proceed  elsewhere. 

RIGHTS   AND   PRIVILEGES   OF   DIPLOMATIC   AGENTS 

453.  A  diplomatic  agent  has  the  right  to  be  allowed  to  fulfill 
the  high  mission  with  which  he  is  entrusted  with  complete  freedom 
and  independence.  He  may,  therefore,  demand  the  enjoyment  of 
the  rights  and  privileges  which  are  considered  as  appropriate  by 
international  custom.    Such  privileges  are: 

a.  Exemption  from  inspection  of  his  baggage  and  of  any  package 
addressed  to  him  when  sealed  with  the  seal  of  his  govern- 
ment; 

b.  Immunity  from  customs  duties; 

c.  The  exercise  of  his  own  religion  and  consequcntlj^,  the  right 

to  have  a  chapel  and  a  minister  with  the  personnel  necessary 
to  celebrate  divine  service; 

d.  Exemption  from  personal  taxes  and  forced  loans. 

454.  A  diplomatic  agent  may  also  demand  the  enjoyment  of 
the  immunities  and  jirivilegcs  established  by  usage  or 
conventions  or  reciprocity. 


238  INTERNATIONAL  LAW   CODIFIED 

Such  are: 

a.  Exemption  from  war  taxes,  tlie  obligation  of  billeting,  etc.; 

b.  Exemption  from  charges  imposed  on  resident  foreigners. 

Publicists  admit  that  the  privileges  and  immunities  which  the  diplomatic 
agent  may  enjoy,  cannot  be  determined  according  to  uniform  and  absolute 
rules.  Some  of  them  are  founded  on  international  customary  law.  Others  are 
based  on  the  comitas  genlium  and  must  be  governed  either  by  conventions, 
usage  or  reciprocity.  Exemption  from  taxes  and  immunity  from  customs 
certainly  have  no  legal  basis.  It  can  even  strictly  be  held  that  since  the  diplo- 
matic agent  must  pay  the  taxes  on  consumable  goods,  he  must  pay  the  taxes 
on  goods  brought  into  the  coimtry  to  satisfy  his  personal  needs.  Compare: 
Heffter,  Droit  international,  §  217;  Pradier-Fodere,  Cours  de  droit  diplomatique, 
v.  2,  p.  45;  Calvo,  Droit  international,  §§  1529  et  seq.;  Bluntschli,  Droit  inter- 
national codifie,  rules  222-223;  Oppenheim,  International  law,  v.  I,  2d  ed., 
pp.  460-472. 

455.  It  is  incumbent  upon  the  diplomatic  agent  to  make  use  of 
his  privileges  with  dignity  and  in  good  faith  and  not  to  avail  him- 
self of  the  immunities  that  are  granted  to  him  either  to  favor  third 
parties  or  to  procure  for  himself  certain  commercial  advantages. 

456.  Customs  officers  cannot,  be  prohibited  from  examining, 
with  the  proper  respect  due  a  foreign  minister,  packages  and 
goods  addressed  to  the  diplomatic  agent  not  under  the  seal  of  his 
government.  By  the  comitas  gentiufn,  however,  it  is  considered 
obligatory  not  to  subject  to  inspection  the  packages  of  a  diplomatic 
agent  who  has  declared  that  they  do  not  contain  any  goods  pro- 
hibited or  intended  for  commercial  purposes. 

457.  The  diplomatic  agent  may  demand  the  honors  and  ex- 
emptions which,  under  the  usage  of  ceremonial  and  "common" 
law  are  due  him  in  accordance  with  his  rank,  mission  and  hier- 
archical position. 

458.  The  diplomatic  agent  who  has  a  permanent  mission,  may 
hoist  over  his  official  residence  the  flag  of  the  state  he  represents 
and  affix  thereon  the  arms  of  his  state,  or  an  inscription  designed 
to  indicate  that  this  place  is  the  seat  of  the  legation. 

459.  Diplomatic  agents  have  the  right  to  exercise  with  respect 
to  their  countrymen  all  the  functions  assigned  to  them  under  the 
law  of  the  state  they  represent.  Their  acts  of  this  character  must 
be  held  valid  even  in  the  state  where  the  legation  is  established, 
except  for  express  reservations  duly  stipulated  by  the  government. 

This  rule  is  based  on  the  idea  that  when  a  state  agrees  that  another  state 
may  establish  a  legation,  it  agrees  implicitly  by  that  very  fact  that  diplomatic 


REPRESENTATION   OF   STATES  239 

agents  may  exercise  with  respect  to  their  countryraea  all  the  privileges  which 
are  conferred  on  them  under  the  law  of  the  country  they  represent.  This  has 
special  reference  to  the  authentication  of  documents,  the  drawing  up  of  wills 
and  certain  acts  affecting  the  civil  status,  such  as  the  celebration  of  marriage 
between  citizens.  Nevertheless,  the  government  to  which  the  diplomatic 
agent  is  accredited  may,  if  it  sees  fit,  make  reservations  as  to  the  validity  on  its 
territory  of  acts  affecting  the  civil  status  performed  by  said  agent. 


PREROGATIVES   OF   DIPLOMATIC   AGENTS 

460.  Whenever  the  rules  of  "common"  law  are  applied  to  any 
matter  concerning  the  diplomatic  agent  in  his  private  relations, 
having  no  connection  with  the  exercise  of  his  functions,  he  has  the 
right  to  expect  that  his  high  position  and  his  character  as  repre- 
sentative of  a  foreign  state  will  be  taken  into  account. 

461.  A  diplomatic  agent  cannot  be  subject  to  personal  arrest 
for  debts,  as  a  private  person  would.  He  is  not  obliged  to  appear 
personally  in  court  to  be  examined,  to  make  a  deposition,  or 
to  perform  acts  required  by  the  code  of  procedure.  He  may  de- 
mand that  an  examining  magistrate  proceed  to  his  residence  for  the 
performance  of  the  said  acts,  giving  him  proper  notice  in  advance. 

462.  A  diplomatic  agent  may  claim  the  enjoyment  of  all  the 
honorary  prerogatives  generally  admitted  by  ceremonial  and 
international  usage,  taking  into  account  his  rank  and  class. 

These  prerogatives,  for  ambassadors  and  ministers  of  the  first 
class,  are: 

a.  The  right  to  the  title  of  Excellency  on  the  part  of  those  who 
treat  with  them  either  by  correspondence  or  personally, 
provided  it  is  sanctioned  by  the  ceremonial  of  the  court 
of  the  sovereign  to  which  the  diplomats  are  accredited ; 

h.  The  right  to  have  a  throne  in  their  reception  room; 

c.  The  right  to  remain  covered  during  their  presentation  cere- 

mony when  the  sovereign  to  whom  they  are  accredited 
himself  remains  covered; 

d.  The  right  to  receive  military  honors  when  they  officially 

attend  public  ceremonies. 

It  is  because  of  these  honorary  prerogatives  that  it  is  commonly  said  that 
only  arnl)assadors  represent  the  sovereign  who  has  accredited  them. 

Since  diplomatic  agents  of  the  second  and  third  classes  do  not  represent  the 
person  of  the  sovereign,  they  cannot  enjoy  the  honors  reserved  to  the  sovereign. 
Consequently,  they  have  no  direct  a(;ceKs  to  the  head  of  the  state,  whose 
audience  tiiey  must  request  through  t  lie  Minister  of  Foreign  Affairs. 


240  INTERNATIONAL   LAW    CODIFIED 

All  these  matters  relate  to  diplomatic  ceremonial  and  etiquette. 
Compare  rules  401,  406,  407. 

INVIOLABILITY    OF   CORRESPONDENCE 

463.  The  correspondence  of  a  diplomatic  agent  with  his  govern- 
ment must  be  considered  inviolate,  whether  it  be  carried  on  by 
ordinary  means  or  by  special  couriers. 

The  responsibility  of  the  state  for  violation  of  correspondence 
cannot  be  considered  as  having  ceased  directly  after  diplomatic 
relations  between  the  two  governments  have  been  broken.  It 
must,  on  the  contrary,  continue  during  that  reasonable  time  which 
must  always  be  given  the  diplomatic  agent  to  leave  his  post. 

464:  The  molestation  of  the  official  correspondence  of  diplomatic 
agents  is  on  a  parity  with  the  violation  of  exterritoriality,  the 
enjoyment  of  which  they  are  entitled  to  in  the  exercise  of  their 
functions  as  representatives  of  their  sovereign.  The  government 
which  infringes  such  exemption,  therefore,  must  be  held  responsi- 
ble under  international  law  for  the  grave  offense  involved  in  a 
violation  of  state  secrets. 

IMMUNITIES    OF    DIPLOMATIC    AGENTS    AND    VIOLATIONS    THEREOF 

465.  Diplomatic  agents  must  be  held  completely  and  abso- 
lutely immune  so  far  as  concerns  their  personal  responsibility  in 
the  performance  of  their  functions  as  representatives  of  a  foreign 
state. 

Even  when  the  case  demands  that  they  be  subject  to  the  appli- 
cation of  the  rules  of  ''common"  law  for  their  private  acts,  it  is 
always  necessary  to  safeguard  the  prestige  and  the  respect  due  to 
their  dignity.  This  must  be  considered  indispensable  for  the 
protection  of  the  reciprocal  interests  of  states  and  for  the  readier 
maintenance  of  their  diplomatic  relations. 

We  do  not  admit,  in  principle,  the  absolute  immunity  of  diplomatic  agents, 
as  it  is  recognized  by  time-honored  theory  (compare  rules  334  et  seq.  and  346). 
Nevertheless,  it  should  be  recognized  that  diplomatic  agents,  as  representa- 
tives of  foreign  sovereigns,  must  be  protected  in  their  high  mission  and  freedom 
of  action;  otherwise,  international  relations  of  which  they  are  the  mediums, 
would  become  impossible.  It  is,  therefore,  evident  that  the  rules,  which  in 
certain  cases  justify  their  submission  to  the  ordinary  courts,  must  normally 
cease  of  application  by  reason  of  the  necessities  of  the  case  and  the  require- 


REPRESENTATION    OF   STATES  241 

ments  looking  to  the  friendly  relations  of  the  several  states.  Consequently 
any  question  which  concerns  diplomatic  agents  must  be  examined  with  ex- 
treme moderation,  taking  into  account  their  high  mission  and  the  principles 
both  of  the  law  of  nations  and  of  the  political  policy  of  each  country.  Even 
when  diplomatic  agents  abuse  their  position  it  must  be  considered  preferable 
to  have  them  recalled  by  their  government  rather  than  jeopardize  friendly 
relations  with  the  state  they  represent. 

466.  Anj'-  offense  offered  to  the  representative  of  a  foreign  state 
as  such,  involves  the  direct  or  indirect  responsibility  of  the  gov- 
ernment and  must  be  deemed  a  violation  of  the  "common"  law 
of  the  international  society. 

467.  We  must  admit  the  direct  responsibility  of  the  government 
for  any  offense  against  a  foreign  diplomatic  agent  offered  by  an 
official  intrusted  with  the  maintenance  of  diplomatic  relations, 
provided  the  head  of  the  government  has  not  frankly  disavowed 
the  acts  of  its  official  and  made  proper  amends. 

468.  The  indirect  responsibility  of  the  government  must  be 
admitted  in  case  of  an  offense  against  a  diplomatic  agent  by  a  minor 
official  of  the  state,  when  the  government,  having  had  notice  of 
the  act,  has  failed  to  make  proper  reparation. 

Such  responsibility  must  also  be  admitted  in  case  of  an  offense 
on  the  part  of  private  individuals,  when  the  government  has  not 
taken  the  necessary  steps  to  discover  the  authors  and  punish  them ; 
or  when  it  has  failed  to  take  all  necessary  measures  to  prevent  the 
offense,  when  this  was  possible. 

469.  The  responsibility  of  the  state  should  always  be  diminished 
when  the  injury  to  the  diplomatic  agent  has  resulted  from  his  own 
imprudence,  and  it  should  be  still  less  when  he  has  virtually  pro- 
voked it. 

470.  If,  by  reason  of  the  very  nature  of  the  acts  or  of  circum- 
stances, the  offense  directed  against  the  foreign  minister  by  indi- 
viduals is  presumably  unconnected  with  his  office,  it  cannot  give 
rise  to  diplomatic  complaints,  except  to  obtain  proper  explanations. 

The  offense  may,  however,  constitute  a  crime  on  the  part  of 
th(;  offenders  under  municipal  law,  when  they  knew  the  character  of 
the  person  injured,  or  when  they  could  not  have  been  ignorant  of  it. 

The  laws  of  different  states  provide  in  various  ways  for  the  punishment  of 
offenses  against  foreign  ministers.  Great  Britain  has  a  special  law  on  the 
matter,  "an  act  for  -preserving  the  privileges  of  ambassadors  and  other  public 
minislcrs  of  foreign,  princes  and  slates"  (Statute  of  7  Anne,  chap.  XII.)  In 
Italy,  such  offenses  are  punished   by  article  130  of  the  Criminal  Code;  in 


242  INTERNATIONAL   LAW    CODIFIED 

France,  by  the  law  of  July  29,  1881,  articles  37  and  47,  and  by  the  law  of 
March  16,  1893.  In  Germany,  there  is  a  relevant  provision  in  article  104  of 
the  criminal  code;  in  Austria,  in  article  494;  in  Holland,  in  articles  118  and  119; 
in  Portugal,  in  article  159;  in  Russia,  in  article  261;  finally,  in  Belgium,  in 
articles  6  and  7  of  the  law  of  March  12,  1858. 

In  some  countries,  the  criminal  code  contains  special  provisions;  in  others, 
on  the  contrary,  "common"  law  is  applied  with  respect  to  the  punishment  of 
offenses  against  public  officers.  Pradier-Fod4r6  believes  that,  in  the  case  of  an 
offense  against  the  ambassador  of  a  foreign  country,  articles  84  and  85  of  the 
French  criminal  code,  which  punish  hostile  acts  that  have  exposed  the  state 
to  a  declaration  of  war,  should  be  applied.  (Cours  de  droit  diplomatique,  v.  II, 
p.  13.) 

See  Fiore,  words  Agenti  diplomatici  in  the  Digesto  italiano,  no.  86  et  seq., 
where  the  laws  of  the  different  states  are  set  forth. 


PERSONS  ATTACHED  TO  THE  LEGATION 

471.  Persons  attached  to  the  legation,  who  exercise  public 
functions  under  the  law  of  their  home  state  and  who  have  been 
officially  recognized  as  such  by  the  government  where  the  legation 
is  established,  should  enjoy  the  rights  and  prerogatives  of  diplo- 
matic agents  in  the  exercise  of  such  of  their  functions  as  are  indis- 
pensable to  the  right  of  legation  on  the  part  of  the  state  repre- 
sented. 

472.  When  the  Minister  of  Foreign  Affairs  has  received  notice 
of  their  official  position  and  privileges,  officials  temporarily  at- 
tached to  the  legation  should  be  considered  as  an  integral  part  of 
the  legation,  and  should  enjoy,  with  respect  to  their  functions,  the 
rights  and  prerogatives  which  according  to  international  law,  per- 
sons acting  in  the  name  of  the  state  must  enjoy. 

473.  An  official  attached  to  the  legation,  who  in  case  of  the  death 
or  absence  of  the  foreign  diplomatic  agent,  is  called  upon  to  act  in 
his  place,  has  the  character  of  a  temporary  diplomatic  agent  and 
should  enjoy  provisionally  all  the  powers,  rights  and  prerogatives 
of  the  titular  diplomatic  agent. 

474.  Persons  composing  the  family  of  the  minister  do  not  enjoy 
any  other  rights  and  prerogatives  beyond  those  which  are  due  them 
in  accordance  with  propriety  and  diplomatic  ceremonial,  in  con- 
sideration of  the  high  dignity  with  which  the  minister  as  head  of 
the  family  is  invested.  These  persons  cannot  enjoy  the  rights  and 
prerogatives  which,  according  to  international  law,  belong  to  the 
representative  of  a  foreign  state. 


REPRESENTATION    OF    STATES  243 

Since  all  the  rights  and  prerogatives  which  belong  to  foreign  ministers  under 
international  law,  are  founded  on  the  theory  that  they  represent  the  state  in 
their  acts,  and  since  the  independence  of  states  does  not  allow  any  state  to  ex- 
ercise its  jurisdiction  according  to  "common"  law  over  the  acts  of  another, 
either  directly  or  indirectly,  it  follows  that  the  same  right  must  be  granted  to 
persons  attached  to  the  legation  when  they  perform  acts  or  exercise  pubUc 
functions  by  delegation  from  the  state  they  represent. 

The  wife  of  a  foreign  diplomatic  agent  cannot  strictly  share  the  rights  and 
immunities  which  belong  to  the  minister.  Nevertheless,  she  has  the  right  to 
share  in  the  dignity  of  her  husband  and  to  participate  in  the  respect  which  is 
due  him,  and  it  is  clear  that  the  independence  which  he  enjoys  and  the  excep- 
tional respect  to  which  he  is  always  entitled,  by  reason  of  his  high  functions, 
must  extend  to  his  wife  and  family  more  than  to  other  persons. 

See,  Martens,  Guide  diplonialique,  v.  I,  p.  79. 

475.  Persons  attached  to  the  service  of  a  foreign  ambassador  or 
minister  cannot  enjoy  any  immunit}';  they  must  remain  subject 
to  the  usual  jurisdictions,  even  with  respect  to  acts  committed  by 
them  in  the  performance  of  their  duties. 

Nevertheless,  the  local  authorities  must  always  act  with  reserve 
and  prudence  because  of  the  respect  due  to  the  diplomatic  agent 
and  of  the  obligations  of  courtesy  incumbent  on  the  government 
to  which  he  is  accredited. 

In  every  question  concerning  diplomatic  agents  and  their  suite,  it  is  always 
necessary  to  differentiate  between  considerations  based  on  the  strict  principles 
of  international  law  and  what  political  tact  and  prudence  may  suggest.  It  is 
easy  to  understand  that,  in  order  to  maintain  amicable  relations  with  the  gov- 
ernment represented,  it  is  necessary  to  act  with  a  great  deal  of  tact  even  when, 
for  example,  it  involves  the  question  of  applying  police  regulations  to  the 
coachman  of  a  foreign  minister  when  they  have  been  violated.  Instead  of 
following  the  principles  of  law,  it  is  preferable  for  the  government  to  which 
the  minister  is  accredited  to  be  guided  by  rules  of  courtesy. 

Compare  the  decision  of  the  French  Court  of  Cassation  of  June  11,  1852, 
Journal  du  Palais,  1852,  v.  2,  p.  57. 

See  also  the  case  of  the  coachman  of  the  French  ambassador  at  Berhn  in 
1888  in  Calvo,  Dr.  inlernat.,  v.  6,  §  315,  and  the  decision  of  the  Alderman's 
Court  of  BerUn  of  December  18,  1888  (Clunet,  Journal,  1889,  p.  82). 


RIGHTS  OF  DIPLOMATIC   AGENTS   WITH   RESPECT  TO   THIRD   POWERS 

476.  Diplomatic  agents  may  avail  themselves  of  their  rights 
and  prerogatives  in  the  foreign  countries  they  must  traverse  to 
reach  the  territory  of  the  state  to  which  they  are  sent,  when  they 
have  established  their  character  and  have  been  authorized  by  the 
government  of  the  third  power  to  travel  as  foreign  officials  through 
its  territory. 


244  INTERNATIONAL   LAW    CODIFIED 

477.  The  public  character  of  a  diplomatic  agent  is  considered  as 
established  with  respect  to  a  third  state  when  the  foreign  minister 
has  advised  the  govermnent  of  that  state  of  his  character  and  has 
been  advised  that  he  may  officially  travel  through  its  territory  to 
reach  his  post. 

478.  Even  in  the  absence  of  such  previous  authorization,  when 
a  diplomatic  agent  has  by  official  documents  shown  his  authority 
and  his  public  character,  he  must  be  considered  under  the  protec- 
tion of  international  law  and  may  require,  even  in  a  third  state,  the 
respect  which  is  due  him  as  the  representative  of  his  own  state,  and 
the  enjoyment  of  the  rights  and  privileges  which  according  to 
"common"  law  may  be  deemed  compatible  with  the  safety  of  the 
state. 

479.  It  is  always  incumbent  on  states  that  wish  to  maintain 
amicable  international  relations  and  not  violate  the  principles  of 
the  comitas  gentium,  to  treat  with  respect  and  consideration  for 
their  high  functions,  foreign  diplomatic  agents  who  travel  through 
the  country  to  reach  their  destination  and  have  announced  their 
position  by  means  of  official,  trustworthy  documents. 

480.  No  government  can  obstruct  the  freedom  of  diplomatic 
relations  and  claim  any  justification,  in  the  protection  of  its  own 
interests,  to  disturb  or  render  such  relations  difficult;  it  can  only 
take  all  the  measures  which,  according  to  the  circumstances  of  the 
case,  may  be  necessary  to  protect  the  safety  of  the  state  and  to 
defend  its  interests. 

Under  this  rule,  it  must  be  admitted  that  no  government  can  hinder  abso- 
lutely the  free  correspondence  of  diplomatic  agents  with  their  own  govern- 
ment, nor  make  use  of  the  monopoly  of  submarine  cables  to  prevent  or  delay 
in  time  of  war  the  free  correspondence  of  foreign  ministers  with  their  sovereign, 
as  happened  in  1899  during  the  war  between  Great  Britain  and  the  South 
African  Republic. 

In  like  manner,  it  must  be  admitted  that  a  government  cannot  absolutely 
forbid  a  diplomatic  agent  to  travel  through  its  territory  to  reach  his  des- 
tination or  to  return  to  his  country.  It  can  merely  take  the  precautions 
justified  by  necessity  for  the  protection  of  the  interests  of  the  state.  Thus, 
for  instance,  it  may  deny  a  diplomatic  agent  the  privilege  of  sojourn  in  its 
territory,  or  trace  for  him  in  advance  an  obligatory  route. 

DUTIES   OF   DIPLOMATIC   AGENTS 

481.  It  is  incumbent  on  a  diplomatic  agent  to  protect  scrupu- 
lously the  interests  of  the  state  he  represents;  to  carefully  look  to 


REPRESENTATION    OF   STATES  245 

the  maintenance  of  good  relations  between  the  respective  govern- 
ments; to  remove  any  cause  which  might  disturb  harmony  be- 
tween the  two  governments. 

It  is  incumbent  on  him,  also,  to  safeguard  the  interests  of  his 
fellow  nationals  and  to  defend  them  against  any  abuse  of  power 
on  the  part  of  the  state  to  which  he  is  accredited. 

482.  The  diplomatic  agent  is  bound  to  fulfill  his  mission  with 
prudence  and  moderation.  He  must  abstain  from  any  direct 
interference  with  the  local  administrative  or  judicial  authorities 
with  a  view  to  defending  the  interests  of  his  countrymen;  he  must 
be  content  to  take  diplomatic  action  with  proper  reserve  before 
the  Minister  of  Foreign  Affairs.  He  must  scrupulously  avoid  every 
form  of  pressure,  provocation  and  threat,  and  content  himself 
with  giving  his  assistance  to  the  just  claims  of  his  fellow  nationals, 
by  facilitating  them  in  pursuing  the  regular  channels  to  obtain 
justice  from  the  local  authorities. 

483.  It  devolves  upon  the  diplomatic  agent  to  respect  the  in- 
stitutions and  national  customs  of  the  country.  He  must  abstain 
from  every  act  calculated  to  give  affront  to  the  convictions  of  the 
people;  he  must  also  respect  popular  prejudices,  of  which  the 
masses,  less  cultured,  are  especially  jealous. 

He  must  refrain  from  fomenting  any  conflict  between  political 
parties  and  abstain  from  any  intrigue  to  approve  or  disapprove  the 
acts  of  the  government. 

484.  Any  direct  or  indirect  interference  of  diplomatic  agents  in 
the  internal  affairs  of  the  state  to  which  they  are  accredited  must 
be  considered  as  directly  contrary  to  their  mission,  and  may  justify 
the  government  in  preventing  or  repressing  such  an  illegitimate 
interference. 

The  most  frequent  cases  of  interference  of  diplomatic  agents  in  internal 
affairs  are  those  of  the  envoys  of  the  Pope,  who  by  exercising  a  direct  action 
on  the  clergy,  have  used  their  influence  to  uphold  political  parties.  Thus,  in 
1S9.5,  Monsignor  Agliardi,  Papal  Nuncio  in  Austria,  interfered  with  the  in- 
ternal affairs  of  that  country,  criticising  politics  on  certain  points  of  interest  to 
the  Catholic  religion,  by  means  of  spcech(>s  he  addressed  to  the  Catholics.  In 
France,  where  the  struggle  between  the  parties  is  more  accentuated,  the  Papal 
Nuncio,  on  several  occasions,  exercised  his  influence  on  the  national  clergy  to 
sustain  the  pohtical  views  of  a  particular  part}',  at  times  encouraging  the  faith- 
ful to  resist  the  laws  promulgated  by  the  government.  This  was  done  by  Mon- 
signor Ferrata,  Papal  Nuncio,  in  1894  and  more  recently,  by  Monsignor  Mon- 
tagnini.  The  incident  arising  from  the  seizure  of  the  documents  of  the  latter 
wag  a  consequence  of  the  undue  interference  of  the  Pope's  envoy.    This  is 


246  INTERNATIONAL   LAW    CODIFIED 

not  the  place  to  discuss  the  matter.  It  would  be  necessary,  in  the  first  place, 
to  decide  whether  the  Pope's  envoy  to  France  was  in  the  position  of  a  diplo- 
matic agent  with  all  the  prerogatives  assigned  to  such  agent  under  interna- 
tional law. 

485.  A  diplomatic  agent  must  not  avail  himself  of  the  privilege 
of  exterritoriality  which  the  legation  enjoys,  to  make  it  available 
to  conspirators  who  might  wish  to  assemble  with  impunity  in 
order  to  prepare  or  uphold  a  revolution  or  to  organize  an  attack 
against  the  security  of  the  state  or  the  authority  of  the  govern- 
ment. The  non-observance  of  such  duty  would  justify  all  the 
measures  taken  by  the  government  to  prevent  an  attack  against 
the  safety  of  the  state,  even  by  withdrawing  the  privilege  of  ex- 
territoriality from  the  legation  building. 

486.  A  diplomatic  agent  cannot  shelter  in  his  legation  persons 
wanted  by  the  police  or  local  judicial  authorities.  He  can  only 
give  protection  to  political  offenders  and  refuse  to  turn  them  over 
to  the  proper  local  authorities. 

487.  A  diplomatic  envoy,  in  order  to  safeguard  his  independence 
and  freedom  of  action  toward  the  government  to  which  he  is  ac- 
credited, cannot  accept  any  honorary  distinction  nor  any  benefits 
from  said  government,  without  the  authorization  of  his  own 
government. 

As  a  rule,  a  diplomatic  agent  cannot  accept  any  decoration  or  present  from 
the  government  to  which  he  is  accredited  without  the  authorization  of  his  own 
government. 

OBSERVANCE  OF   CEREMONIAL 

488.  A  diplomatic  agent  may  require  that  the  rules  established 
by  the  practice  of  diplomacy,  ceremonial  and  usage,  be  ob- 
served; he  has,  in  case  of  non-observance,  the  right  to  demand 
and  obtain  an  explanation,  so  as  to  preclude  any  unfriendly  in- 
tention on  the  part  of  the  government  to  which  he  is  accredited. 

489.  The  formalities  to  be  observed  at  the  time  of  the  reception 
of  diplomatic  agents,  of  the  presentation  of  their  credentials,  as 
regards  visits  and  precedence  are  those  established  by  the  rules  of 
diplomacy  and  court  ceremonial. 


I 


REPRESENTATION    OF   STATES  247 

SUSPENSION    OF   THE    POWERS   OF   A    DIPLOMATIC    AGENT 

490.  The  powers  of  a  diplomatic  agent  must  be  considered  as 
temporarily  suspended: 

a.  In  case  of  the  death,  deposition  or  abdication  of  the  head  of 

the  state  by  whom  the  minister  was  accredited,  so  long  as 
the  latter  has  not  been  officially  instructed  by  the  succes- 
sor to  the  throne  to  announce  his  accession. 

b.  When,  by  reason  of  a  revolution  or  any  other  cause,  the  politi- 

cal constitution  either  of  the  minister's  home  state  or  of 
that  to  which  he  is  accredited,  undergoes  a  change,  so  long 
as  the  respective  governments  have  not,  on  the  one  hand, 
given  official  notice  of  the  occurrence,  or  acknowledged  it 
on  the  other. 

c.  When,  for  personal  reasons,  the  diplomatic  agent  finds  him- 

self in  fact  absolutely  unable  to  fulfill  his  mission. 

d.  When  the  diplomatic  agent  has  officially  resigned,  so  long  as 

his  resignation  has  not  been  accepted. 

491.  When  the  temporary  suspension  of  the  diplomatic  mission 
takes  place,  the  diplomatic  agent  does  not  lose  ipso  facto  the  char- 
acter of  representative  of  the  state,  nor  the  enjoyment  of  the  rights 
and  privileges  which,  according  to  international  law,  he  possesses  in 
that  capacity. 

CESSATION   OF  THE   DIPLOMATIC   MISSION 

492.  The  diplomatic  mission  ceases: 

o.  When  the  agent  was  sent  on  a  special  mission  which  has 
terminated ; 

b.  When  recalled  by  his  government,  the  government  to  which 

he  is  accredited  being  notified  of  the  recall ; 

c.  When  the  territorial  sovereign  has  sent  him  his  passport, 

fixing  a  time  limit  to  leave  the  territory  of  the  state; 

d.  When  he  has  sent  in  his  resignation  and  its  acceptance  has 

been  noted  by  the  gov(^rnment  to  which  he  is  accredited 
as  well  as  accepted  by  his  own; 

e.  When  war  is  declared  between  the  two  states. 

493.  In  whatever  manner  the  diplomatic  mission  may  cease, 
not  excluding  the  case  of  a  declaration  of  war,  it  is  always  necessary 


248  INTERNATIONAL   LAW    CODIFIED 

to  grant  the  minister  a  easonable  time  limit  for  returning  to  his 
country  and  to  assure  him  of  his  privilege  of  personal  inviolability 
and  security  until  he  crosses  the  frontier. 

USURPATION    OF   DIPLOMATIC    FUNCTIONS 

494.  Whoever  assumes  the  character  of  representative  of  a 
state  and  exercises  the  functions  of  a  diplomatic  agent  without 
being  legally  authorized  thereunto,  should  be  held  guilty  of  vio- 
lating international  law  and  may  be  punished  accordingly,  not  only 
in  his  own  country,  but  also  in  the  country  in  which  he  has  usurped 
diplomatic  functions. 


TITLE  XV 

CONSULS 

GENERAL   CHARACTERISTICS   OF   CONSULS 

495.  Consuls  have  not  in  general  the  characteristics  of  diplo- 
matic agents.  Nevertheless,  they  must  be  regarded  as  public 
officers  of  the  government  which  has  appointed  them;  all  of  their 
acts  must  be  considered  as  of  a  public  character.  In  the  exercise 
of  their  duties  they  may  claim  the  enjoyment  of  the  rights  and 
privileges  which  are  granted  them  according  to  international  law. 

496.  Consuls  may  be  considered  as  the  representatives  of  the 
state  in  its  political  relations  with  the  state  to  which  they  are  sent 
only  in  cases  where  the  exercise  of  diplomatic  duties  has  been 
assigned  to  them  with  the  formalities  indicated  for  diplomatic 
agents.  In  that  event,  they  are  subject  to  the  rules  which  govern 
diplomatic  agents,  by  reason  of  the  duties  they  exercise  and  within 
the  limits  of  their  appointment. 

We  believe  that  the  substantial  distinction  between  diplomatic  agents  and 
consuls  must  be  maintained  and  that  the  former  only  should  be  given  the 
power  to  represent  the  state.  This  cannot,  however,  prevent  a  government 
from  assigning  to  its  consul  duties  of  a  political  nature,  by  instructing  him  to 
represent  the  state.  We  are  of  the  opinion  that  in  such  case,  it  is  indispensable 
that  the  special  political  powers  assigned  to  the  consul  be  determined  and  speci- 
fied in  the  credentials  Avhich  he  must  present  to  the  foreign  government. 

There  are  numerous  instances  of  diplomatic  duties  assigned  to  consuls 
general.  Such  duties  are  especially  assigned  by  states  of  secondary  impor- 
tance, for  example,  by  certain  republics  of  South  America,  and  by  states  which 
do  not  have  full  sovereignty,  as  Egypt. 

497.  Consuls  sensu  striclo  are  officials  scut  hy  a  state  to  a  city 
of  another  state  there  to  exercise  their  public  functions,  consules 
missi.     They  are  not  allowed  to  engage  in  business. 

The  name  of  consul  is  also  given  to  officials  who,  while  not 
citizens  of  the  state  sending  them  but  of  the  state  to  which  they  are 
accredited,  have  instructions  to  exercise  consular  duties  in  another 
country.     They  are  called  consules  electi  and  constitute  a  class 

249 


250  INTERNATIONAL   LAW   CODIFIED 

inferior  to  the  first,  that  of  consules  missi.    They  may  engage  in 
business. 

The  full  enjoyment  of  the  rights  and  privileges  assigned  to 
consuls  under  international  law  must,  in  principle,  be  considered  as 
extended  to  consules  missi. 


ESTABLISHMENT    OF    CONSULATES 

498.  Consulates  can  be  established  only  by  virtue  of  a  previous 
agreement  of  the  two  governments,  either  a  consular  or  any  other 
convention  or  agreement. 

It  is,  however,  considered  contrary  to  good  international  relations 
arbitrarily  to  refuse  the  authorization  for  the  establishment  of  a 
consulate  at  places  where  the  commerce  between  the  citizens  of 
the  two  states  has  assumed  considerable  proportions. 

499.  When,  in  the  convention  between  two  states,  the  cities 
where  consulates  are  to  be  established  have  been  decided  upon,  the 
express  consent  of  the  two  governments  must  be  considered  es- 
sential to  the  creation  of  a  consulate  at  a  place  not  indicated  in  the 
convention. 

In  principle,  establishing  consulates  must  be  considered  as  within  the  sphere 
of  the  reciprocal  freedom  of  states.  But  since,  in  places  where  commercial 
relations  assume,  in  fact,  a  great  development,  the  reciprocal  interest  of  states 
that  desire  to  continue  good  relations  requires  that  the  institutions  capable 
of  contributing  to  the  development  of  commerce  and  the  protection  of  public 
and  private  interests  be  promoted,  the  arbitrary  refusal  of  the  creation  of 
consulates  may  with  reason  be  considered  as  an  unfriendly  act  so  far  as  the 
maintenance  of  good  relations  between  the  two  states  is  concerned.  Such 
unjustified  refusal  might  even  be  considered  offensive  by  the  state  which  de- 
sires to  establish  the  consulate  and  has  made  a  formal  request  to  that  effect. 

500.  When  the  two  contracting  states  have  reserved  to  them- 
selves the  reciprocal  right  to  establish  a  consulate  or  vice-consulate 
in  the  cities,  ports  or  places  of  their  respective  territories  without 
indicating  the  location  of  such  consulate,  the  right  of  one  of  the 
parties  to  prohibit  the  other  from  establishing  a  consulate  in  a 
certain  place  is  always  reserved. 

This  rule  is  based  on  the  principle  of  independence  and  of  the  respect  of  the 
rights  of  territorial  sovereignty.  The  general  privilege  to  establish  consulates 
in  the  respective  territories  does  not  imply  the  right  to  establish  them  against 
the  will  of  the  territorial  state  in  any  place  within  its  jurisdiction.  It  can  only 
be  admitted  that  when  a  port  is  open  to  trade  and  consulates  of  different  states 
are  established  there,  the  territorial  sovereign  cannot  limit  the  right  of  the  for- 


CONSULS  251 

eign  sovereign  under  tlio  general  agreement  by  forbidding  him  to  establish  a 
consulate  iu  that  port.  Indeed,  a  restriction  that  would  not  apply  to  other 
states  would  not  be  justifiable. 


POWERS   AND   DUTIES   OF   CONSULS 

501.  The  powers  of  consuls,  in  so  far  as  they  constitute  their 
right  as  pubUc  officers  to  exercise  duties  as  such,  find  their  basis  in 
the  law  of  the  state  to  which  they  belong.  Every  power,  therefore, 
implies  the  right  of  the  consul  as  a  public  officer  under  the  law  of 
the  state  which  has  appointed  him. 

His  duties  denote  the  exercise  of  the  powers  of  the  consul,  under 
the  rules  established  between  the  two  states  by  a  consular  conven- 
tion or  treaty  of  commerce. 

502.  Aside  from  special  rules  established  by  common  agreement 
between  the  two  states,  it  must  be  admitted  in  principle  that 
consuls  have  the  right  to  protect  the  interests  of  their  fellow- 
citizens,  to  lend  assistance  to  their  countrymen,  and  to  see  that 
the  rules  contained  in  treaties  of  commerce  and  navigation  and  in 
the  agreements  concluded  between  the  two  states  are  applied  to 
their  countrj^men. 

Moreover,  they  may  exercise  administrative  functions  with 
respect  to  their  fellow-citizens,  e.  g.,  those  of  public  registration 
officers  and  all  other  duties  assigned  to  them  with  respect  to  the 
said  citizens  under  the  laws  and  regulations  of  their  country.  The 
acts  thus  performed  by  consuls  have  in  thecountry  which  appointed 
them  such  legal  value  as  the  law  of  their  state  provides. 

503.  A  consul  cannot  exercise  any  functions  producing  full 
legal  effects  in  the  country  where  he  resides,  except  when  the 
exercise  of  his  powers  under  his  national  law  may  be  considered  as 
admitted  by  virtue  of  the  conventions  concluded  between  the 
two  states. 

To  determine  the  powers  of  the  consul  of  a  state,  we  should  first  refer  to 
his  national  law,  to  see  whether  or  not  he  is  competent  to  perform  a  specified 
act.  His  competence  must  be  founded  upon  the  law  of  his  country  as  amplified 
by  regulations.  Thus,  for  instance,  Italian  consuls,  under  article  171  of  the 
consular  law  may  not  only  execute  judicialcommissions  which  are  sent  to  them 
by  the  courts  of  Italy,  but  are  also  authorized  to  execute  those  sent  them  by 
foreign  courts.  Con.sequently,  they  have  the  power  to  undertake  searches, 
make  valuations,  hear  witnesses  and  receive  depositions  of  Italian  citizens 
estaljlished  in  or  passing  through  their  consular  district.  When,  on  the  other 
hand,  the  question  Is  to  determine  the  exercise  of  his  duties,  with  relation  to 


252  INTERNATIONAL   LAW    CODIFIED 

the  country  of  his  residence,  it  is  indispensable  to  refer  to  the  convention  con- 
cluded between  the  two  states.  No  function  directly  or  indirectly  implying  a 
jurisdictional  or  imperative  power  can  be  exercised  except  under  the  consular 
convention.  This,  for  example,  is  the  case  with  respect  to  the  right  to  affix 
seals  and  to  institute  guardianship,  etc. 

504.  The  powers  of  consuls  must  be  considered  as  limited,  not 
only  when  the  limitations  proceed  expressly  from  the  convention, 
but  also  when  the  exercise  of  such  powers  is  inconsistent  with  the 
respect  due  to  territorial  law. 

Even  when,  in  the  convention,  the  exercise  of  a  power  belonging  to  the 
respective  consuls  is  not  expressly  reserved,  the  limitation  may,  nevertheless, 
arise  from  territorial  law. 

Let  us  suppose,  for  instance,  that  the  territorial  law  stipulates  that  in  all 
its  civil  effects,  a  marriage  is  valid  only  when  celebrated  before  the  territorial 
civil  oflBcer,  and  that  the  said  law  thus  excludes  the  civil  effects  of  a  marriage 
celebrated  by  a  consul,  even  though  the  intended  husband  and  wife  be  fellow- 
citizens  of  the  consul.  In  that  case,  the  character  of  a  civil  officer  conferred 
on  the  consul  with  respect  to  his  fellow-citizens  by  the  law  of  his  country  must 
be  considered  as  limited,  from  the  view-point  of  the  territorial  effect  of  acts 
under  territorial  law,  from  which  it  is  not  permitted  to  derogate. 


WHEN    IS   THE    CHARACTER   OF   CONSUL   ESTABLISHED 

505.  A  consul  can  only  exercise  his  functions  in  the  country 
where  the  consulate  is  established  from  the  time  the  government 
of  that  country  has  officially  recognized  him. 

506.  The  official  recognition  of  the  public  character  of  a  consul 
must  be  considered  as  effected  through  the  observance  of  terri- 
torial laws  and  regulations  relating  to  the  official  acceptance  of 
foreign  consuls. 

Official  relations  between  the  local  authorities  and  the  consul  are  usually 
established  as  a  result  of  the  official  communication  made  by  the  government 
which  sends  the  consul  and  of  his  official  acceptance  as  such  by  the  territorial 
authorities,  in  conformity  with  local  laws  and  regulations. 

Under  the  laws  of  certain  countries,  a  foreign  consul  is  accepted  through 
the  official  note  which  recognizes  him  as  such  and  which  is  called  exequatur. 
This  is  the  case  in  France,  Italy,  Spain  and  the  United  States.  In  other  coun- 
tries, the  official  letter  of  acceptance  is  called  placet.  In  still  other  states,  like 
Russia  and  Germany,  the  consul  is  simply  advised  that  his  appointment  has 
received  the  exequatur.  In  Austria,  an  official  vis6  is  affixed  to  the  official  letter 
of  communication. 

507.  The  exequatur  can  be  withdrawn  not  only  in  cases  deter- 
mined by  the  convention,  but  also  because  of  reasons  personal  to 


CONSULS  253 

the  consul.     In  the  latter  case,  however,  the  government  which 
sent  him  has  the  right  to  demand  and  obtain  explanations. 

PROTECTION    OF   CITIZENS 

508.  Consuls  must  always  be  considered  as  authorized  to  pro- 
tect the  interests  of  absent  or  incompetent  citizens  of  the  state 
which  sent  them;  they  may  do  whatever  may  be  required  by  cir- 
cumstances to  safeguard  and  protect  the  rights  and  interests  of 
these  citizens,  observing,  however,  the  provisions  both  of  the 
territorial  law  and  of  the  consular  convention. 

509.  Even  when  not  authorized  by  a  convention  to  affix  seals 
in  case  of  the  death  of  a  citizen,  consuls  may  nevertheless  officially 
request  the  local  authorities  to  provide  for  the  protection  and 
conservation  of  decedents'  estates  and  rights  of  inheritance;  they 
may  be  present  or  assist  in  all  the  proceedings  of  affixing  and  remov- 
ing seals,  drawing  up  the  inventory  and  reports  of  the  proceedings, 
and  the  prompt  sale  of  perishable  property  of  the  estate.  They 
may,  for  these  purposes,  request  the  local  authorities  to  advise  them 
of  the  date  on  which  the  various  acts  in  the  proceedings  will  be 
undertaken,  and  request  that  they  be  expedited.  They  may, 
moreover,  require  that  the  effects  and  securities  inventoried  be 
duly  preserved,  and  supervise  their  preservation.  They  may 
demand  that  the  funds  realized  from  the  sale  of  securities  and 
property  be  deposited  in  public  banks  so  as  to  earn  interest, 
and  they  may  prosecute  the  claims  of  deceased  persons.  In  a  word, 
they  may  do  in  the  foreign  country  everything  the  interested 
pai'ties  are  authorized  to  do  under  the  law,  provided  the.y  give 
tluMr  assent  or  are  otherwise  legally  represented.  When  the  in- 
terested nationals  are  present  or  legally  represented,  they  may 
assist  them  to  obtain  the  proper  application  of  the  law  and  of 
all  the  proceedings  necessary  for  the  preservation  of  their  rights. 

510.  Consuls  cannot,  unless  authorized  by  the  consular  con- 
vention, institute  a  guardianship  or  trusteeship  in  conformity  with 
the  law  of  their  country;  but  they  may  always,  in  the  interest  of 
heirs,  see  to  it  that  the  guardianship  is  duly  instituted  and  operates ^ 
properly,  referring  the  case  if  need  be  to  the  competent  local 
authorities  and  assisting  the  interested  parties  before  the  courts. 

511.  The  riglit  of  consuls  to  assist  their  nationals  in  all  matters 


254  INTERNATIONAL   LAW    CODIFIED 

not  regulated  by  the  consular  convention,  considering  that  it  is 
based  on  the  comitas  gentium,  cannot  limit  the  power  of  the  ter- 
ritorial authorities  to  apply  the  law  of  their  country.  Nevertheless, 
they  must  show  the  greatest  courtesy  to  the  consul  who  has  asked 
assistance  for  his  fellow-citizens. 

DUTIES    WITH   REGARD   TO   THE   MERCHANT   MARINE 

512.  Consuls  have  the  right  to  protect  the  merchant  vessels 
of  their  country  and  to  exercise  over  them  a  police  jurisdiction 
consistent  with  proper  respect  for  the  local  laws  and  the  port 
regulations.  To  that  end,  they  may  receive  the  declarations  of 
the  captain,  members  of  the  crew  and  passengers  with  regard  to 
events  having  occurred  on  board  during  the  voyage,  examine  the 
ship's  papers  and  exercise  on  board  the  ship  all  the  powers  con- 
ferred on  them  by  their  national  law.  They  may,  furthermore, 
require  compliance  with  the  local  laws  and  regulations  relating  to 
the  police  of  the  port,  the  loading  and  unloading  of  vessels  and  the 
safe  storage  of  merchandise. 

513.  Consuls  may,  without  opposition  from  the  local  authorities, 
observe  the  provisions  of  their  national  law  for  settling  minor 
difficulties  which  have  occurred  on  board  a  national  merchant 
vessel,  provided  their  consequences  do  not  extend  beyond  the  ship. 
They  may  also  settle  disagreements  between  the  captain  and  the 
crew  by  applying  their  national  law  and  render  assistance  in  all 
cases  to  the  master  of  the  ship  when  the  local  authorities  are  per- 
mitted by  the  local  laws  and  regulations  to  interfere  on  board. 

514.  Consuls  must  be  regarded  as  authorized  to  look  after  the 
property  belonging  to  sailors  of  their  country  who  may  have  died 
on  board  during  the  voyage  or  at  the  port  of  arrival.  They  may, 
therefore,  proceed  to  inventory  the  effects  and  undertake  other 
steps,  except  those  requiring  acts  of  sovereignty,  for  the  preserva- 
tion of  the  property  of  a  decedent's  estate,  for  which  their  right 
to  apply  to  the  proper  territorial  authorities  must  be  recognized. 

515.  Consuls  may,  in  the  interest  of  their  fellow-citizens,  require 
the  observance  of  the  local  laws,  statutes  and  regulations  relating 
to  the  police  of  ports,  the  loading  and  unloading  of  vessels  and  the 
safe  storage  of  goods. 

It  devolves  upon  them,  however,  to  carry  out  their  duties  of 


CONSULS  255 

assistance  with  moderation  and  discretion,  and  on  the  other  hand, 
the  local  authorities  must  not,  on  the  pretext  of  irregularity,  reject 
or  obstruct  the  intervention  of  a  consul  called  upon  to  protect 
the  merchant  marine  of  his  country;  on  the  contrary,  they  should 
observe  toward  him  all  proper  courtesy. 

516.  Consuls  cannot  exercise  coercive  power  over  members  of 
the  crew  of  national  merchant  ships,  who  have  deserted  and  are 
in  port  simultaneously  with  the  ship.  They  may,  however,  request 
the  assistance  of  the  local  authorities  in  returning  on  board  men 
who  in  fact  belong  to  the  crew  and  are  needed  to  man  the  ship. 
Yet  these  individuals  can  only  be  arrested  in  conformity  with  the 
provisions  of  the  appropriate  consular  convention.  * 

DUTIES   OF   CONSULS   IN    UNCIVILIZED    COUNTRIES 

517.  The  duties  of  consuls  in  uncivilized  countries  must,  in 
general,  be  considered  as  more  extensive  than  in  civilized  countries; 
they  must,  in  principle,  be  governed  by  special  treaties  or  by 
capitulations. 

518.  Consuls  must  be  considered  as  having,  in  the  countries 
where  capitulations  are  in  force,  a  right  of  jurisdiction  in  civil 
and  criminal  matters,  as  well  as  the  powers  assigned  to  them  by 
the  law  of  their  country  for  the  administration  of  justice  and  the 
execution  of  judgments  rendered  by  them. 

As  regards  the  exercise  of  consular  jurisdiction  in  countries  where  capitula- 
tions are  in  force,  compare  rules  357  et  scq. 

See  also,  Contuzzi,  La  isliluzione  del  consolali  ed  il  diritto  internazionale 
europeo  nella  sua  applicabilild  in  Oriente,  Naples,  1885, — F6raud-Giraud, 
De  la  juridiclion  franqaise  dans  les  Echelles  du  Levant,  Paris,  1866. — Lawrence, 
tllwles  sur  la  juridiclion  consulaire  en  pays  Chretiens  et  en  pays  non  Chretiens, 
Leipzig,  1880. 

519.  In  principle,  consuls  enjoy,  in  uncivilized  countries,  the 
immunities,  freedom  and  privileges  indispensable  to  the  exercise 
of  the  powers  vested  in  them.  The  privilege  of  exterritoriality 
must  be  considered  as  granted  to  them,  and  must  also  be  recog- 
nized on  the  part  of  persons  attached  to  the  consulate,  such  as  the 

*  [By  sections  16  and  17  of  the  United  States  Seaman's  Act  (Act  of  March  4, 
1915  .38  Stat.  L.  1184)  arrest  for  desertion  and  the  assistance  of  the  local 
authorities  in  effecting  such  arrest  were  abolished,  and  directions  given  to  the 
President  to  give  notice  to  foreign  gf)verntnents  of  the  termination  of  any 
treaties  inconsistent  with  the  above  provisions  of  the  Act — Trausl.] 


256  INTERNATIONAL    LAW    CODIFIED 

vice-consul,  interpreters,  dragomen,  and  other  clerks  of  the  con- 
sulate placed  under  the  immediate  control  of  the  consul. 

520.  The  privilege  of  exterritoriality  must  also  extend  to  the 
house  where  the  consulate  is  established.  The  local  authorities 
cannot  take  any  jurisdiction  over  this  house;  they  are  bound  to 
protect  it  in  case  of  public  disturbance,  as  well  as  the  consul  and 
persons  attached  to  the  consulate.  If  he  requests  it,  they  must 
give  the  consul  a  safe-conduct,  and  assure  him  sufficient  protec- 
tion to  insure  the  inviolability  of  his  person  and  residence. 

The  exceptional  position  of  consuls  in  non-Christian  countries  and  in  Mus- 
sulmen  and  uncivilized  countries  makes  it  indispensable  that  they  be  vested 
with  more  extensive  rights  and  privileges  than  those  enjoyed  by  ordinary 
consuls. 

The  enumeration  of  these  rights  and  privileges  is  found  in  capitulations  and 
in  the  various  treaties  concluded  by  each  state.  In  principle,  however,  it  must 
be  admitted  that,  since  in  non-Christian  countries  the  consul  lawfully  ad- 
ministers civil  and  criminal  justice  and  is  one  of  the  judicial  authorities  of  the 
country  to  which  he  belongs,  he  must  be  considered  as  invested  with  all  the 
rights,  prerogatives  and  privileges  which  are  deemed  indispensable  for  main- 
taining the  independence  of  the  foreign  state  in  the  exercise  of  its  powers  in 
the  administration  of  justice. 

PREROGATIVES   OF   CONSULS    UNDER    "  COMMON"    LAW 

521.  The  rights  and  prerogatives  of  consuls  under  "common" 
law  must  be  accorded  in  principle  only  to  consular  envoys  (con- 
sules  inissi),  that  is,  to  those  who  are  citizens  of  the  state  which 
has  appointed  them  expressly  to  exercise  consular  functions,  with 
a  prohibition  against  carrying  on  commerce  or  business. 

522.  Consular  envoys,  whether  consuls  general  or  vice-consuls, 
whenever  they  are  accepted  and  recognized  as  such  under  the  rules 
and  formalities  in  use  in  the  country  where  they  are  to  exercise 
their  functions,  are  not  personally  responsible  for  acts  they  per- 
form as  official  representatives  of  their  government,  within  the 
scope  of  their  authority  under  official  instructions  and  of  their 
character  as  public  officers. 

As  regards  acts  performed  in  their  official  capacity  and  within 
the  scope  of  their  authority,  they  engage  the  responsibiUty  of 
the  state  which  has  appointed  them. 

Compare,  with  regard  to  the  submission  of  consuls  to  the  local  jurisdiction, 
rules  347-350,  and  as  regards  the  civil  or  international  responsibility  of  the 
foreign  state,  rules  595  et  seq.,  603  el  seq. 


CONSULS  257 

523.  Consuls  must  be  fully  protected  in  the  exercise  of  their 
functions;  they  cannot  be  arrested  or  detained  except  for  offenses 
involving  severe  punishment.  They  cannot  be  compelled  to 
appear  as  witnesses  before  the  local  courts,  nor  to  appear  per- 
sonally for  examination  in  a  criminal  case;  but  their  depositions 
must  be  taken  in  writing,  or  verbally  at  their  residence. 

524.  In  every  instance,  the  local  authorities  must  proceed  with 
a  foreign  consul  with  all  the  respect  due  him  by  virtue  of  his  public 
character.  When  it  is  necessary  to  prosecute  him  for  serious 
offenses,  they  must  advise  the  government  of  his  country  and,  if 
possible,  delay  the  proceedings  until  it  has  taken  appropriate 
measures,  either  by  revoking  his  instructions  or  otherwise. 

The  purpose  of  these  rules  is  to  protect  the  exercise  of  consular  functions,  and 
to  prevent  the  possible  injury  which  raight  arise  if  consuls  were  prevented  or 
retarded  in  the  exercise  of  their  duties.  In  most  consular  conventions,  it  is 
recognized,  in  principle,  that  consular  envoys  cannot  be  arrested  except  in  case 
of  offenses  considered  as  crimes  and  punished  as  such  by  the  courts  of  the  state 
where  they  reside.  See  the  consular  convention  between  Italy  and  the  United 
States  of  February  8,  1868,  arts.  3  and  4;  with  Austria-Hungary,  of  May  15, 
1874,  arts.  4  and  5;  between  the  United  States  and  Belgium,  of  December  5, 
1868;  between  Italy  and  France,  of  July  26,  1862,  arts.  2  and  3. 

525.  In  all  cases  where  the  consul  must  appear  in  person  before 
the  local  courts,  he  cannot  refuse,  but  the  local  authorities  must 
invite  him  to  appear  with  all  possible  respect  for  his  position  and 
the  official  duties  committed  to  his  charge. 

626.  Consuls  have  the  right  to  be  exempted  from  municipal  or 
state  burdens  or  charges  imposed  on  citizens  and  resident  for- 
eigners. They  are  not  subject,  therefore,  to  military  billetting, 
to  service  in  the  militia,  or  to  any  public  service  of  a  municipal 
character.  They  are  also  exem]:>t  from  the  obligation  to  pay 
military  taxes  and  direct  personal  or  sumptuary  taxes  imposed  by 
the  state,  province  or  town,  unless  the.y  own  real  property  or  en- 
gage  in   business. 

527.  Consuls  may  place  on  the  outer  door  of  their  offices  or 
residence,  the  arms  of  their  state  with  the  inscription,  consulate. 

They  may  also  hoist  their  national  flag  on  their  residence  or 
offices,  when  they  do  not  reside  in  the  capital  of  the  country  where 
the  legation  of  their  country  is  located. 

For  the  inviolability  of  consular  (jfficcrs,  sec  rules  378-381. 


258  INTERNATIONAL  LAW   CODIFIED 

CONSULAR  AGENTS 

528.  Consular  agents,  whether  they  are  citizens  of  the  state 
which  appointed  them,  or  of  the  state  where  they  exercise  their 
functions,  do  not  enjoy  the  same  rights  as  consuls  of  the  first  class. 

Nevertheless,  for  acts  performed  in  the  exercise  of  their  func- 
tions, by  virtue  of  their  conmiission  and  within  the  scope  of  their 
special  authority,  they  are  not  personally  responsible. 

529.  Consular  agents  may  place  on  the  outer  door  of  their  resi- 
dence or  offices,  the  arms  of  the  foreign  state  for  which  they  act, 
with  the  inscription,  consular  agency. 

Under  the  Italian  law,  the  personnel  of  consulates  is  divided  into  two  classes, 
those  who  cannot  engage  in  business  and  must  be  Italian  citizens,  and  those 
who  may  engage  in  business  and  may  be  foreigners.  The  latter  are  called  vice- 
consuls  or  consular  agents. 


■I 


TITLE  XVI 
OF  THE  PROTECTION  OF  CITIZENS  ABROAD 

PROTECTION    AS   A    RIGHT   OF    SOVEREIGNTY 

530.  Every  state  has  the  right  to  protect  and  defend  its  citizens 
residing  abroad  by  all  the  means  considered  lawful  in  international 
law.  It  must  oppose  all  arbitrary  acts  committed  against  them, 
and  in  case  of  an  infringement  upon  their  rights,  must  support 
them  in  legal  actions  brought  to  obtain  satisfaction  for  unjust  in- 
jury, and  demand,  according  to  circumstances,  appropriate  guar- 
anties to  prevent  the  recurrence  of  similar  acts. 

531.  The  right  of  protection  of  citizens  abroad  must  be  exer- 
cised particularly  by  the  sovereign  of  the  state  and  by  the  diplo- 
matic agents  vested  with  its  legal  representation.  It  may  also  be 
exercised  by  consuls  in  the  countries  where  they  are  established 
and  within  the  limits  fixed  by  the  consular  convention,  which 
determines  the  attributes  of  consuls  in  the  respective  countries. 

The  purpose  of  the  foregoing  rules  is  to  lay  down  the  principle  of  the  legal 
protection  of  the  rights  of  man  in  the  international  society.  Even  in  the  sup- 
position that  these  rights  would  not  be  recognized  by  treaties,  they  ought 
nevertheless  to  be  always  under  the  protection  of  the  sovereign  of  the  state  of 
which  the  individual  is  a  citizen.  .Such  sovereign  has  not  only  the  right,  but 
the  duty,  to  protect  citizens  resident  abroad  and  to  demand  for  them  the  appli- 
cation of  the  laws  which  must  insure  the  protection  of  the  human  person  and 
his  rights.  Usually,  the  reciijrncai  obligation  to  respect  tlu'  rights  of  humanity 
— established  infra  in  title  XXII— is  recognized,  by  way  of  reciprocity,  in 
treaties.  Nevertheless,  it  cannot  be  claimed  that  such  obligation  does  not 
exist  in  the  ab.sence  of  a  treaty,  and  that  the  national  state;  of  the  alien  may 
not  come  to  his  defense  when  his  per.sonal  rights  are  infringed. 

PROTECTION    AS    A   RIGHT   OF   THE   CITIZEN 

532.  The  right  of  citizens  to  claim  the  diplomatic  protection  of 
the  country  to  which  they  belong,  must  be  considered  as  hav- 
ing for  its  basis  the  relation  resulting  from  (citizenship.  Conse- 
(juently,  the  proof  of  citizenship  must  be  considered  a  prerequisite 

259 


260  INTERNATIONAL  LAW   CODIFIED 

for  the  legitimate  exercise  of  diplomatic  action  and  of  the  right 
and  duty  of  protection  incumbent  on  the  sovereign  towards  the 
citizen. 

533.  Any  question  concerning  the  citizenship  of  the  individual 
who  claims  the  protection  of  tlie  state,  must  be  decided  according 
to  the  law  of  the  country  to  which  said  individual  claims  to  belong. 

The  diplomatic  action  of  the  government  of  each  state  can  be 
recognized  as  legitimate  only  when  such  individual  has  not,  under 
the  law  of  his  native  country,  lost  the  citizenship  of  that  country. 

534.  When  the  citizenship  of  the  individual  who  seeks  protec- 
tion is  a  matter  of  doubt,  and  especially  when  he  has  left  his  native 
country  without  any  intention  of  returning,  the  result  being  that 
he  has  in  fact  broken  the  ties  which  bound  him  to  his  country,  it 
must  be  considered  as  contrary  to  political  expediency  and  equity 
(even  though  not  opposed  to  strict  right)  to  set  in  motion  the 
state's  diplomatic  machinery  for  the  advantage  of  a  person  who, 
having  renounced  his  native  country,  seeks  afterwards  to  avail 
himself  of  its  political  forces  to  defend  his  interests. 

It  cannot  be  considered  wise  policy  to  place  the  state's  diplomacy  at  the 
service  of  individuals  who  unquestionably  cannot  be  regarded  as  citizens  of  the 
state  whose  protection  they  request. 

WHEN    PROTECTION    MAY    BE    LEGITIMATE 

535.  The  protection  of  citizens  nuist  be  considered  legitimate 
whenever,  according  to  the  principles  of  "common"  law,  the  in- 
ternational responsibility  of  the  state  against  which  diplomatic 
action  is  being  exercised  must  be  considered  as  well-founded. 

536.  International  responsil)ility  may,  in  principle,  arise  from 
unlawful  acts  of  the  government  or  of  public  officers,  which  acts 
constitute  a  violation  of  the  rights  of  person  or  property  of  citizens 
of  the  state  which  exercises  the  diplomatic  action. 

This  rule  may  be  applied  to  damages  caused  to  foreigners  during  revolutions 
and  civil  wars,  which  frequently  disturb  the  American  republics,  and  during 
which  the  rules  of  international  law  are  not  always  observed. 

537.  The  international  responsibility  which  may  justify  diplo- 
matic action  may  also  arise  from  contractual  engagements  under- 
taken by  the  state  with  private  individuals,  when,  under  the 
circumstances,  the  non-performance  of  the  contract  can  be  consid- 


OF   THE    PROTECTION    OF    CITIZENS    ABROAD  261 

ered  a  result  of  bad  faith  of  tho  government,  which  has  misused 
its  power  to  violate  the  legitimate  rights  of  private  individuals, 
refuses  them  the  legal  protection  to  which  they  are  entitled  and 
commits  to  their  detriment  a  veritable  denial  of  justice. 

538.  Although  in  a  treaty  concluded  between  the  state  which 
exercises  the  diplomatic  action  and  the  state  against  which  the 
action  is  directed-,  there  may  have  been  an  express  stipulation  of 
a  reciprocal  obligation  to  refrain  from  any  interference  in  all  mat- 
ters relating  to  the  administration  of  justice,  such  an  engagement 
cannot  limit  diplomatic  action  in  case  of  denial  of  justice,  as  that 
fact  must  be  considered  a  manifest  violation  of  the  principles  of 
international  law. 

These  rules  may  be  applied  in  case  of  the  protection  of  citizens,  creditoraof  a 
foreign  state.  While  in  principle  the  claims  of  those  creditors  cannot  justify 
diplomatic  action,  when  they  have  at  their  disposal  means  of  judicial  recourse 
to  protect  their  rights  and  interests,  yet  when  the  government  of  the  debtor 
state  acts  in  bad  faith  to  obstruct  the  ordinary  course  of  justice  and  thus 
infringes  directly  upon  the  intangible  rights  of  the  individual,  diplomatic  pro- 
tection may  then  be  considered  legitimate. 

INDIVIDUALS   MAY   NOT   LIMIT   THE   RIGHT   OF   THE   STATE 

539.  When  individuals,  in  contracts  concluded  with  a  foreign 
government,  have  expressly  renounced  the  right  of  protection  on 
the  part  of  their  own  government  such  stipulation  cannot  have 
legal  force  to  prevent  the  diplomatic  action  of  their  national 
government,  when  lawfully  exercised. 

Protection  must  not  be  considered  as  an  enforcible  right  of  a  private  individ- 
ual, but  as  a  public  right  and  duty  of  the  state  in  its  relations  with  foreign 
states.  It  must  be  admitted  that  protection  has  as  its  basis  the  relations  ex- 
isting between  the  sovereign  of  the  state  and  the  collectivity,  to  which  belong 
the  citizens  in  whose  favor  dii)lomatic  action  is  exercised.  The  sovereign,  as  the 
supreme  organ  of  right,  must  legally  protect  the  rights  of  the  individual  mem- 
bers of  the  collectivity,  in  so  far  as  those  rights  are  exercised  within  the  do- 
main of  international  relations. 

RATIONAL   LIMIT   OF   PROTECTION 

540.  It  is  incumbent  upon  prudent  and  enlightened  governments 
carefully  to  examine  and  weigh  all  the  circumstances  in  order  to 
determine  whether  diplomatic  action  should  be  exercised. 

Even  admitting  the  widest  discretion  and  freedom  of  judgment  on  the  part 
of  the  government  in  its  decision  as  to  the  grant  or  refusal  of  diplomatic  pro- 


262  INTERNATIONAL   LAW    CODIFIED 

tection  on  behalf  of  citizens  who  allege  injury  by  foreign  governments,  we  are 
of  the  opinion  that  interfering  in  the  financial  or  judicial  administration  of  a 
foreign  state  must  always  be  considered  as  a  grave  and  delicate  matter.  It 
often  happens  that  contractors  and  speculators  take  advantage  of  the  circum- 
stances in  which  the  American  republics  are  placed  (especially  during  their 
internal  strifes)  to  use  their  money  in  more  or  less  successful  operations,  and 
then  invoke  the  diplomatic  protection  of  their  government  in  order  to  realize 
the  exaggerated  profits  they  wished  to  obtain.  Without  entering  into  details, 
we  shall  merely  say  that  the  main  question  which  any  prudent  government 
must  seriously  examine  is  whether  the  claims  are  or  are  not  justified,  taking 
into  account  the  good  or  bad  faith  of  the  government  against  which  they  are 
directed.  It  cannot  be  admitted  in  principle  that  those  who  risk  their  money 
by  entering  into  more  or  less  speculative  contracts  should  not  run  the  risks 
of  their  undertaking. 

541.  Governments  must  not  exaggerate  diplomatic  action  by 
diverting  it  from  its  true  purpose,  so  as  to  make  of  a  question  of 
private  law  a  matter  of  international  interest,  unless,  owing  to 
peculiar  circumstances,  the  dignity  of  the  state  is  involved. 

It  must  always  be  considered  contrary  to  a  wise  and  prudent  policy  to  make 
the  case  of  a  private  individual  the  case  of  the  government.  Compare:  Philh- 
more,  pt.  V,  chap.  II,  v.  2;  and  Heffter,  Droit  international,  §  58. 

542.  Protection  designed  to  secure  for  citizens  residing  abroad 
a  privileged  position  must  be  considered  unlawful  and  unjusti- 
fiable: 

a.  When  it  is  exercised  with  a  view  to  substitute  diplomatic 
action  for  the  action  of  the  territorial  sovereign; 

h.  When  it  is  so  exaggerated  as  to  be  equivalent  to  a  pressure 
by  a  powerful  state  upon  a  weak  state  to  procure  for  its  citi- 
zens unjustified  advantages  or  exemption  from  obligations 
arising  under  territorial  law. 

These  rules  tend  to  exclude  undue  protection  on  the  part  of  powerful  gov- 
ernments, which  have  sometimes  demanded  from  weaker  governments  that 
their  citizens,  established  in  foreign  countries  to  engage  in  business,  should  not 
be  subject  to  local  laws,  or  should  obtain  through  administrative  channels  the 
protection  of  their  rights,  notwithstanding  the  existence  of  judicial  means  by 
which  such  protection  might  have  been  obtained. 

Among  the  different  cases  of  undue  protection,  see  the  case  of  MacDonald 
mentioned  by  Calvo,  Droit  international,  4th  ed.,  §  1279.  Compare:  Fiore, 
Diritto  internazionale  pubblico,  4th  ed.,  v.  I,  pp.  412  et  seq. 


PROTECTION    OF   NATURALIZED    PERSONS 

543.  The  right  of  protection  appertaining  to  the  sovereignty  of 
each  state  may  be  exercised  even  with  respect  to  naturalized  per- 


OF  THE   PROTECTION   OF   CITIZENS  ABROAD  263 

sons,  provided  that  they  are  not  protected  against  the  state  of 
which  they  were  citizens  originallj',  for  the  purpose  of  exempting 
them  from  the  performance  of  duties  and  obligations  which  subsist 
notwithstanding  the  change  of  nationaUty. 

This  rule  tends  to  exclude  the  protection  of  a  naturalized  person  against  his 
native  country,  in  cases  where  he  is  called  to  perform  certain  duties  which  he 
has  failed  to  fulfill  before  emigrating,  for  instance,  that  of  military  service. 
In  the  case  of  Meyer,  a  Prussian  citizen  naturahzed  in  the  United  States  who, 
having  returned  to  Prussia  was  compelled  to  perform  his  military  service,  the 
just  principles  governing  the  situation  may  be  found  in  the  note  of  Baron 
Manteuffel  to  Mr.  Fay,  United  States  Minister,  dated  October  2,  1852: 

"When  any  individual  obtains  naturalization  in  a  foreign  country,  the  gov- 
ernment of  his  native  country  can  never  acknowledge  that  this  fact,  of  itself, 
releases  him  from  the  obligations  which  were  imposed  upon  him  in  his  for- 
mer country  before  his  naturalization.  I  will  add,  that  in  cases  like  this,  in 
which  the  said  Meyer  finds  himself,  it  is  much  less  a  question  of  retaking  any 
individual  to  enroll  him  in  the  army,  than  to  maintain  the  respect  due  to  the 
law,  and  to  insure  its  execution.  And  if  the  government  of  his  Majesty  pro- 
poses to  execute  the  law  against  a  Prussian  subject  on  Prussian  territory,  I 
desire  to  persuade  myself  that  the  government  of  the  United  States  has  too 
much  respect  for  its  own  dignity  to  be  willing  to  oppose  itself  thereto."  (36th 
Congress,  1st  session.  Senate  Ex.  Doc.  No.  38,  1860.) 

544.  The  right  of  protection  may  be  exercised  by  a  state  with 
respect  to  individuals  who,  though  not  its  citizens,  happen  to  be 
its  'proteges. 

Among  these  we  may  consider  not  all  the  persons  who  ask  and 
obtain  the  protection  of  the  diplomatic  agents  of  a  given  state,  but 
those  who,  by  virtue  of  treaties  concluded  with  Oriental  states  and 
uncivilized  states,  may  lawfully  claim  the  condition  of  proteges, 
and  who  in  fact  must  be  considered  as  assimilated  to  the  citizens 
of  the  protecting  state. 

This  rule  applies  to  individuals  in  the  service  of  ambassadors  and  consuls  in 
Oriental  countries  and  in  uncivilized  states,  who,  under  the  treaties,  have  in 
fact  the  same  legal  status  as  citizens,  as  long  as  they  exercise  their  functions 
as  employees.  Compare  the  treaty  of  July  3,  18S0,  concluded  by  Italy  and 
other  states  with  Morocco  {Martens,  N.  R.  G.,  2d  s^rie,  v.  VI,  p.  624),  in  which 
the  condition  of  proteges  is  regulated.  See  also  Oppenheim,  International  law, 
V.  I,  §295. 


TITLE  XVII 
INTERNATIONAL  DUTIES  OF  THE  STATE 

GENERAL   PRINCIPLES 

545.  Each  state  is  bound  to  respect  the  international  rights  of 
the  other  members  of  the  international  society  and  to  exercise  all 
its  functions,  activities  and  rights  in  such  a  way  as  not  to  in- 
fringe upon  the  rights  of  others. 

The  purpose  of  this  rule  is  to  formulate  the  general  principle  of  equilibrium 
and  of  legal  organization,  which  can  be  maintained  only  on  condition  that  a 
state  does  not  encroach  upon  the  domain  of  others  and  that  each  one  renders 
to  others  their  due.  The  existence  in  common  of  persons  who  have  identical 
rights  cannot  be  conceived  without  presupposing  the  constant  observance  of 
a  certain  law  of  proportion  as  to  their  actions  and  forbearance  of  action.  Other- 
wise, their  coexistence  would  be  impossible.  The  rights  of  states  set  forth  in 
the  foregoing  titles  have  as  a  necessary  complement  duties  which  each  is 
bound  to  observe. 

546.  Moreover,  it  is  incumbent  upon  states  and  on  the  govern- 
ments which  represent  them  to  recognize  the  authority  of  moral 
law  and  natural  justice  and  not  to  violate  their  precepts  either  in 
war  or  in  peace. 

Moral  law,  which  should  regulate  all  the  relations  of  reasonable  beings,  must 
apply  to  all  the  relations  arising  among  civilized  peoples  who  constitute  the 
international  society.  The  observance  of  the  principles  which  that  law  im- 
poses characterizes  civilization  and  gives  rise  to  all  the  duties  known  as  duties 
of  humanity. 

547.  The  principal  international  duties  of  states  are: 
a.  The  duty  of  non-intervention; 

h.  The  duty  of  collective  intervention; 

c.  The  international  duty  of  mutual  assistance; 

d.  The  duty  of  international  responsibility; 

e.  The  duties  of  humanity. 

In  addition,  states  have  the  general  duty  of  performing  honestly 
and  in  good  faith  the  obligations  contracted  by  virtue  of  treaties, 
or  express  or  tacit  agreements,  or  which  arise  out  of  any  acts  they 
may  have  undertaken  in  international  society. 

264 


TITLE  XVIII 
DUTIES  OF  NON-INTERVENTION 

INTERVENTION    MUST   BE   DEEMED    ABSOLUTELY    UNLAWFUL 

548.  Each  state  is  bound  not  to  interfere  in  the  affairs  of  other 
states,  with  a  view  to  obstructing  or  preventing  the  free  and  inde- 
pendent exercise  of  their  rights  of  sovereignty  and  the  free  develop- 
ment of  all  the  functions  and  legitimate  activities  of  government. 

549.  Intervention  must  be  considered  absolutely  unlawful. 
Interference  in  internal  and  external  affairs  effected  by  moral 

force  constitutes  moral  intervention;  that  effected  by  armed  force 
constitutes  armed  intervention.  Both  must  be  deemed  absolutely 
unlawful  and  considered  as  a  violation  of  international  law. 

550.  It  must  be  deemed  as  absolutely  prohibited : 

a.  To  intervene  in  a  struggle  between  a  sovereign  and  people 
who  desire  to  modify  the  political  constitution  of  the  state 
or  the  form  of  government; 

b.  To  hinder  the  free  development  of  the  constituted  govern- 
ment and  of  public  administration; 

c.  To  interfere  with  the  exercise  of  the  powers  of  the  state  by 
hindering  in  any  way  whatever  the  right  of  each  state  to 
enact  its  laws  with  entire  independence;  nor  should  it 
violate  international  law,  either  by  restricting  the  inde- 
pendence of  the  judiciary,  or  by  seeking  to  influence  ap- 
pointments to  public  office  or  the  development  of  sovereign 
functions,  etc. 

d.  To  indulge  in  any  direct  or  indirect  attack  against  the  auton- 
omy and  independence  of  the  state. 

The  duty  of  non-intervention,  in  any  question  concerning  the  political  con- 
stitution of  the  state  and  the  free  exorcise  of  any  sovereign  function  and  power 
within  and  without  the  state,  is  the  indispensable  condition  of  the  real  and 
effective  autonomy  and  independence  of  the  state.  Every  right  is  (lorrehitive 
to  a  duty  and  it  is  dear  that  the  rights  of  sovereignty  wfiich  liave  been  men- 
tioned in  the  foregoing  titles  imply  the  (-(jrrclative  duty  of  resi)ccting  law  and 

205 


266  INTERNATIONAL   LAW   CODIFIED 

refraining  from  any  interference  on  the  part  of  other  states.  This  duty  has 
been  more  generally  recognized  in  the  second  half  of  the  19th  century.  Since 
the  treaty  of  Vienna  of  1815,  which  laid  down  as  the  basis  of  the  new  organiza- 
tion of  Europe  the  maintenance  and  defense  of  the  territorial  possessions  of 
the  reigning  dynasties  and  of  the  rights  accorded  to  each  of  them  under  that 
treaty,  armed  intervention  was  justified  by  the  pretended  necessity  of  main- 
taining the  organization  of  Europe  as  it  was  established  and  of  maintaining 
the  balance  of  power.  See  the  history  of  the  armed  interventions  to  arrest 
the  liberal  movement  in  Spain,  at  Naples,  in  Portugal  and  elsewhere,  in  Calvo, 
Droit  international,  v.  I,  §§  168  et  seq. 

551.  The  immediate  injury  and  the  detriment  to  national  inter- 
ests and  prospects,  which  may  indirectly  result  from  a  revolution 
within  a  foreign  state  and  from  civil  war,  do  not  justify  armed 
intervention. 

There  is  a  tendency  at  the  present  time  to  give  to  international  society  the 
legal  organization  that  it  needs  and  to  establish  the  dominance  of  law  and 
justice.  It  may  happen  that  acts  occurring  within  a  state  may  be  detrimental 
to  the  interests  of  a  foreign  state;  but  it  should  not  be  admitted  that  the  state 
which  claims  to  have  been  injured  thereby  may  become  in  fact  judge  and 
party  at  the  same  time  and  render  justice  to  itself  by  its  own  intervention. 
The  observance  of  the  procedure  provided  for  by  international  law  for  the 
protection  and  safeguarding  of  reciprocal  interests  must  be  considered  indis- 
pensable among  states  existing  in  common  in  the  Magna  civitas  for  the  main- 
tenance of  the  supremacy  of  law. 

552.  When  revolution  and  civil  war  in  a  state  result  in  real  and 
actual  injury  to  the  rights  of  another  state,  the  latter  may  defend 
itself  by  all  the  means  permitted  by  international  law. 

To  protect  one's  own  right  is  not  committing  an  injustice  against  others. 
It  should  be  considered  unlawful  to  meddle  in  the  internal  political  affairs  of  a 
foreign  country,  and  to  use  moral  or  material  force  to  make  one's  will  or  de- 
signs prevail.  If,  however,  a  revolutionary  party,  in  order  to  gain  adherents, 
seeks  to  overturn  the  political  institutions  of  a  neighboring  country,  the  right 
of  every  state  to  assure  its  own  defense  by  every  available  means  would  justify 
resistance  and  action,  as  the  case  may  be.  It  could  also  employ  armed  force 
to  repel  unjust  invasion,  and  to  combat  the  direct  action  of  the  revolutionary 
party.  This  would  not  in  reality  be  intervention,  but  an  act  of  legitimate 
defense,  which  might  sometimes  give  rise  to  a  casus  belli. 

INTERVENTION    CANNOT   BE   JUSTIFIED   BY   A   TREATY 

553.  Intervention  in  internal  affairs  to  assist  a  foreign  govern- 
ment in  case  of  civil  war  cannot  be  considered  lawful,  even  though 
it  might  occur  under  the  terms  of  a  treaty  and  with  the  formal 
consent  of  the  erstwhile  constituent  government;  indeed,  it  should 
always  be  considered  as  a  palpable  violation  of  the  international 
rights  of  the  people. 


DUTY   OF  NON-INTERVENTION  267 

Compare  rulef?  89  et  seq.  [By  article  3  of  the  treaty  of  May  22,  1903,  be- 
tween the  United  States  and  Cuba  (Malloy,  Treaties,  p.  362)  it  was  agreed 
"that  the  United  States  may  exercise  the  right  to  intervene  for  the  preserva- 
tion of  Cuban  independence,  the  maintenance  of  a  government  adequate  for 
the  protection  of  life,  property,  and  individual  liberty,"  etc. — Transl.] 

554.  Intervention  by  a  state  by  means  of  its  moral  and  armed 
force  to  maintain  the  political  organization  of  another  state  cannot 
be  justified  on  the  ground  that  it  is  done  under  the  express  stipu- 
lation of  a  previous  treaty  concluded  between  the  governments 
reciprocally  to  guarantee  their  territorial  possessions,  or  the  pre- 
tended rights  of  reigning  dynasties. 

This  rule  is  based  on  the  principle  that  the  right  to  provide  for  the  internal 
organization  of  the  state  and  for  its  political  constitution  vests  originally  and 
wholly  in  the  people,  and  that  sovereigns  cannot,  through  the  stipulations  of 
treaties,  deprive  the  people  of  the  complete  right  to  govern  themselves  and 
administer  their  affairs  with  the  fullest  independence.  The  pretended  rights 
of  reigning  dynasties  founded  upon  historical  right  and  other  titles  cannot 
ever  weaken  the  international  rights  of  peoples  and  nations  and  therefore 
cannot  legitimate  the  use  of  armed  force  and  the  assistance  of  foreign  states 
through  intervention.  This  rule  does  not  bar  a  defensive  alliance  between  two 
nations,  which  may  legitimate  armed  assistance  when  the  casus  foederis  is 
applicable  to  the  defense  of  the  rights  of  the  state  or  of  its  people,  but  not 
those  of  the  government  or  dynasties  against  the  people. 

INTERVENTION  IN  FAVOR  OF  THE  POPE 

555.  The  absolute  duty  of  non-intervention  in  the  internal 
affairs  of  a  state  cannot  suffer  any  modification  on  the  ground  that 
its  object  is  to  safeguard  the  pretended  rights  of  the  Papacy  and 
its  aspirations  toward  temporal  power. 

One  of  the  most  specious  sophisms  of  the  Papacy  and  of  its  partisans,  is  the 
pretended  necessity  of  temporal  power  and  poHtical  sovereignty  on  the  part  of 
the  Pope  to  insure  to  him  tlie  most  complete  independence  in  his  functions 
as  head  of  the  church.  It  was  through  this  fallacy  that  they  sought  to  justify, 
at  Rome,  the  intervention  of  France,  which  maintained  its  troops  there  until 
1870,  on  the  pretext  of  i^rotecting  tlie  interests  of  the  Catholic  Church  and  of 
its  head.  Rules  74  and  75  and  those  we  shall  set  forth  hereafter  to  establish 
the  exercise  of  the  rights  of  the  Church,  exclude  the  necessity  of  political  and 
temporal  sovereignty  on  tlic  part  of  the  Pope.  Certain  attempts  have  been 
made,  especially  by  Catholic  bishops,  to  urge  governments  to  intervene  at 
Rome,  in  order  to  restore  the  temporal  sovereignty  of  the  Pope;  but  from  this 
time  on,  it  may  be  considered  as  estal)!ished  that  intervention  for  such  purpose 
is  contrary  to  the  principles  of  modern  international  law. 

The  legal  safeguard  of  the  international  rights  of  the  Church,  as  they  are  set 
out  in  rule  73,  may  be  the  object  of  collective  legal  protection,  in  conformity 
with  the  principles  embodied  in  rules  49,  50  and  following  and  of  the  other 
rules  concerning  collective  interference  which  are  set  forth  in  the  following  title, 
but  it  could  never  legitimate  intervention  as  the  individual  action  of  a  state. 


TITLE  XIX 
DUTIES  OF  COLLECTIVE  INTERVENTION 

WHEN    IS    INTERVENTION    REQUIRED 

556.  Collective  intervention  must  be  considered  obligatory  when 
its  object  is  to  protect  the  rights  of  the  persons  and  legal  entities 
who  are  members  of  the  international  society,  and  whose  rights 
have  been  determined  in  titles  I  and  II  preceding. 

Compare  rules  62,  67,  73,  79,  89,  92,  97. 

In  order  fully  to  understand  the  foregoing  rule,  we  must  bear  in  mind  that 
collective  intervention  may  be  justified  by  the  idea  of  asserting  the  supremacy 
of  law.  Its  ultimate  purpose  should  be  the  realization  of  the  words  of  Mira- 
beau:  "Law  will  some  day  be  the  sovereign  of  the  world."  Hence  any  arbi- 
trary violation  of  the  rights  of  persons  (state,  men,  people,  nations  or  churches), 
can  never  be  justified  by  virtue  of  the  European  concert. 

We  reprint  what  we  said  at  page  249  of  the  third  edition  of  the  present  work 
in  reference  to  the  question  of  Crete: 

"  In  the  question  of  Crete  or  Candia,  which  is  being  discussed  at  the  present 
time,  we  cannot  deny  that  the  intervention  of  the  great  powers  is  required  as 
an  international  duty  to  proceed  by  common  agreement  to  the  solution  of  the 
Eastern  question.  We  are  even  convinced  that  the  most  urgent  duty  would  be 
not  to  delay  its  solution  in  conformity  with  the  most  just  principles  of  modern 
international  law.  Nevertheless,  the  European  nations  have  sought  to  con- 
form to  the  political  views  of  the  most  powerful  governments,  which  desire  to 
secure  the  integrity  of  the  Ottoman  Empire,  principally  because  they  are  not 
all  in  accord  as  to  the  regulation  of  the  new  order  of  things  which  would  result 
from  the  emancipation  of  the  Christian  provinces  subject,  by  historical  right, 
to  the  authority  of  a  Mussulman  ruler,  and  because  they  fear  the  danger  of  a 
European  war  if  the  integrity  of  Turkey  were  disturbed. 

"The  bombardment  of  Candia  and  the  threat  of  blockade  of  the  Piraeus  to 
compel  the  universal  acceptance  of  the  law  made  by  the  European  concert,  to 
respect  the  integrity  of  the  Ottoman  Empire  and  to  subordinate  the  just  aspira- 
tions of  the  Cretes  or  Candians  to  this  supreme  necessity,  is  not  at  all  in  keep- 
ing with  the  principle  formulated  in  our  rule.  Coercive  measures  would  have 
been  more  justified  if  they  had  compelled  everyone,  including  Greece,  not  to 
oppose  the  right  of  the  Cretes  to  adopt  the  political  constitution  most  con- 
formable with  their  national  aspirations  with  complete  autonomy  and  inde- 
pendence. The  time,  on  the  other  hand,  has  not  yet  come  to  give  to  collective 
intervention — which  in  principle  must  be  admitted  to  be  just  and  legitimate — 
rational  rules  determining  its  exercise  and  development.  It  will  be  necessary 
to  wait  until  public  opinion,  which  in  that  case  displayed  its  power  and  force, 
acquires  a  greater  influence  in  the  direction  of  international  politics." 

268 


DUTIES   OF   COLLECTIVE   INTERVENTION  269 

557.  Collective  intervention  must  be  considered  as  a  form  of 
protection  of  international  law,  and  must  be  deemed  legitimate 
only  when  its  object  is  to  protect  or  restore  the  authority  of  "com- 
mon" law  violated  by  one  or  more  states. 

Compare  rule  49. 

To  determine  clearly  the  conception  of  collective  intervention  and  its  legit- 
imacy, it  must  be  remembered  that  its  main  object  is  the  legal  protection 
of  international  law.  We  cannot  admit,  in  principle,  that  all  that  the  great 
powers  have  established  by  common  accord  may  be  justified  by  virtue  of  the 
so-called  European  or  American  concert.  To  admit  this,  would,  under  another 
form,  restore  the  preponderance  of  the  pentarchy,  which  was  the  consequence 
of  the  concert  established  by  the  great  powers  at  the  Congress  of  Vienna  in 
1815.  In  that  Congress  it  was  thought  that,  in  order  to  maintain  the  so-called 
balance  of  power  and  secure  peace,  it  was  indispensable  to  preserve  territorial 
possessions  under  the  rule  of  the  reigning  dynasties,  to  which  they  had  been 
assigned  even  by  resorting  to  coercive  measures.  Thus  originated  the  erro- 
neous conception  that  everything  could  be  justified  by  agreement  of  sovereigns 
and  they  sought  in  this  manner  to  justify  the  armed  interventions  planned  at 
Laybach  in  1821  and  at  Verona  in  1822  to  repress  the  liberal  movements  in 
the  Kingdom  of  Naples,  in  Piedmont  and  in  Spain. 

If  everything  could  be  justified  under  the  so-called  European  concert,  by 
reason  of  the  accord  of  the  great  powers,  it  would  result  in  strengthening  the 
autocracy  of  politics  and  justifying  recourse  to  arms  to  maintain  it.  There 
would  thus  ensue  a  return  in  another  form  of  conditions  similar  to  those  which 
arose  from  the  erroneous  conception  of  the  legitimacy  of  constituted  powers  as 
conceived  by  Metternich  and  the  disregard  of  the  sacred  and  inviolable  rights 
of  peoples. 

In  his  note  of  May  12,  1821,  Metternich,  to  justify  the  concert  of  the  great 
powers  as  to  armed  intervention,  wrote  as  follows  at  Laybach: 

"The  u-seful  or  necessary  changes  in  legislation  and  in  the  administration  of 
states  can  only  emanate  from  the  free  will  and  the  deliberate  and  clear  judg- 
ment of  those  whom  God  has  made  responsible  for  the  power.  Everything 
which  departs  from  this  principle,  necessarily  leads  to  disorder,  to  disturbances, 
and  to  evils  more  unbearable  than  those  it  is  sought  to  remedy.  Convinced  of 
this  eternal  truth,  the  sovereigns  have  not  hesitated  frankly  and  vigorously 
to  proclaim  it.  They  have  declared,  that  in  respecting  the  rights  and  inde- 
pendence of  all  legitimate  power,  they  regarded  as  legally  null  and  in  conflict 
with  the  principles  constituting  the  public  law  of  Europe,  every  alleged  reform 
brought  about  by  revolt  and  open  force.  They  have  acted  upon  this  declara- 
tion in  the  events  which  occurred  at  Naples  and  in  Piedmont." 

Our  conception  of  collective  intervention  must  not  be  confused  with  that 
which  inspired  the  so-called  European  concert,  whose  traces  are  still  visible  in 
contemporary  political  history. 

558.  Collective  intervention  may  also  be  considered  obligatory 

when  its  purpose  is  to  put  an  end  to  conditions  of  anarchy  which 

might  continue  for  a  long  time  and  prove  highly  detrimental  to 

international  trade,  industry  and  general  interests. 

The  revolution  which  broke  out  in  June,  1875,  in  Bosnia  and  Herzegovina 
and  lasted  so  long  that  it  endangered  general  peace,  brought  about  the  inter- 


270  INTERNATIONAL  LAW   CODIFIED 

vention  of  Germany,  Austria-Hungary,  Russia,  France  and  Italy,  who  offered 
their  mediation,  so  as  to  faciUtate  the  pacification  of  the  provinces  subject  to 
Turkey.  Great  Britain  refused  to  join  it,  because,  as  Lord  Derby  wrote  in  his 
note  of  August  24  of  that  year,  the  British  government  beheved  that  inter- 
ference would  encourage  the  insurrection  and  would  assume  the  character  of  an 
intervention  in  the  internal  affairs  of  Turkey.  This  is  not  the  place  to  discuss 
the  political  views  of  governments  in  this  respect;  we  merely  wish  to  say,  that 
if  in  such  cases,  collective  intervention  is  not  considered  obligatory,  it  must  be 
deemed  permissible  and  justifiable.  The  main  point  in  this  matter  is  that 
states  agree  upon  the  need  and  expediency  of  such  a  measure,  or,  in  other 
words,  that  a  considerable  number  of  states,  representing  the  majority,  recog- 
nize that  interference  is  justified  by  the  circumstances. 

Thus,  by  excluding,,  in  so  delicate  a  matter,  the  predominance  of  individual 
judgment  and  by  recognizing  the  necessity  of  the  agreement,  not  of  several, 
but  of  the  majority  of  states,  the  danger  that  our  rule,  as  formulated,  may  lead 
to  arbitrariness  is  dispelled. 

The  arguments  set  forth  in  the  note  of  December  30,  1875,  to  justify  collec- 
tive intervention  as  regards  Bosnia  and  Herzegovina,  seem  to  us  to  justify 
the  measure:  "The  state  of  anarchy,"  the  note  reads,  "which  prevails  in  the 
North-East  provinces  of  Turkey,  does  not  merely  imply  difficulties  for  the 
Porte.  It  also  involves  grave  danger  to  the  general  peace,  and  the  various 
states  of  Europe  cannot  with  indifference  observe  the  perpetuation  and  aggra- 
vation of  a  situation  which  now  weighs  heavily  upon  commerce  and  industry 
and  which,  as  it  daily  continues  to  shake  the  public  confidence  in  the  mainte- 
nance of  peace,  tends  to  compromise  the  interests  of  all." 

WHEN   COLLECTIVE  INTERVENTION  MAY   BE  JUSTIFIABLE 

559.  Collective  intervention  is  justifiable: 

a.  When  its  object  is  to  prevent  or  to  put  an  end  to  a  state  of 
affairs  contrary  to  law :  such  as  the  incorporation  of  a  terri- 
tory by  conquest,  the  execution  of  a  treaty  imposed  by 
violence  on  the  vanquished  by  the  victor  and  any  acts  which 
must  be  deemed  unjust  and  illegitimate  under  "common" 
law; 

6.  When  it  seeks  to  repress  the  violation  of  an  order  of  things 
previously  established  by  a  general  treaty,  a  violation 
arbitrarily  committed  by  one  of  the  contracting  parties  to 
the  detriment  of  the  other  parties; 

c.  When  one  of  the  parties  fails  to  carry  out  the  particular 
stipulations  of  a  general  treaty,  thus  violating  the  right  of 
those  for  whose  benefit  the  stipulations  were  made,  provided 
the  wrongdoing  party  acts  arbitrarily  and  in  bad  faith. 

The  second  part  of  the  rule  would  find  its  application  in  case  one  of  the 
powers  which  subscribed  to  the  treaty  of  Paris  of  1856,  or  the  treaty  of  Brussels 
of  July  2,  1890,  for  the  repression  of  the  slave  trade,  were  to  fail  to  observe  the 


DUTIES   OF   COLLECTIVE   INTERVENTION  271 

rules  laid  down  in  these  conventions  with  respect  to  maritime  war  or  the  re- 
pression of  the  traffic  in  slaves.  Such  would  be  the  case  of  a  state  which,  in 
the  event  of  war  with  another  state,  failed  to  respect  the  rule  relating  to  real 
and  effective  blockade,  or  which  would  not  honestly  fulfill  its  obligations  con- 
cerning the  repression  of  the  slave  trade.  In  such  case,  it  would  be  fair  to 
maintain  that  the  state  which  violated,  to  the  prejudice  of  another  state,  the 
rules  agreed  upon  in  a  general  treaty  would  not  merely  violate  the  right  of  that 
state  but  of  other  powers  as  well,  since  all  the  states  are  jointly  and  severally 
interested  in  seeing  that  the  rules  established  among  them  by  common  consent 
are  respected. 

The  other  part  of  the  rule  would  find  its  application  in  the  case  of  Turkey 
not  observing  the  stipulations  according  to  which,  under  article  61  of  the 
treaty  of  Berhn  of  July  13,  1878,  it  has  assumed  "to  effect  without  delay  the 
improvements  and  reforms  required  according  to  local  needs  in  the  provinces 
inhabited  by  the  Armenians  and  to  guarantee  their  security  against  the  Kurds 
and  Circassians."  Collective  intervention  would  be  justified,  not  only  by 
reason  of  the  general  principles  according  to  which  the  respect  of  the  law  es- 
tabUshed  by  common  accord  among  states  must  be  recognized,  but  also  by 
reason  of  the  particular  fact  that  Turkey  failed,  as  it  was  bound  to  do,  to  report 
to  the  other  signatory  powers  of  the  treaty  the  nature  of  the  measures  adopted, 
so  as  to  make  it  possible  for  them  to  supervise  the  execution  of  its  stipulations. 


WHEN   COLLECTIVE   INTERVENTION  MAY  BE  UNJUSTIFIABLE 

560.  Collective  intervention  in  the  public  administration  and 
exercise  of  the  sovereign  powers  of  a  foreign  state  may  be  con- 
sidered a  violation  of  the  rights  of  autonomy  and  independence 
of  that  state,  and  therefore  illegitimate,  whenever  it  is  not  based 
upon  protection  of  national  interests. 

Therefore,  if  a  government  takes  undue  advantage  of  its  position 
in  its  relations  with  private  individuals,  violates  its  duly  contracted 
obligations,  declines  to  heed  the  just  claims  of  foreigners,  or  exer- 
cises its  sovereign  powers  contrary  to  the  principles  of  justice  and 
in  creating  a  state  of  affairs  essentially  abnormal, — collective 
intervention  to  repress  open  violence  and  prevent  violation  of 
the  absolute  principles  of  justice  may  be  considered  lawful  and 
justifiable. 

One  is  bound  to  admit  that  a  moral  law  exists  between  states  and  that  they 
are  bound  by  a  natural  and  reciprocal  obligation  to  maintain  intact  the 
fundamental  principles  of  "common  "  law.  If  it  could  ever  be  maintained  that 
a  state  may  with  impunity  violate  those  principles  and  that  the  other  states 
would  be  bound  to  remain  indifferent,  it  would  be  impossible  for  international 
society  to  exist.  Therefore,  a  collective  remonstrance  can  always  be  justified 
as  a  protection  of  law  against  arbitrary  and  persistent  infringement.  Compare 
rule  537. 


272  ^      INTEKNATIONAL    LAW    CODIFIED 

INTERVENTION  IN  THE  RELATIONS  BETWEEN  THE  CHURCH  AND  THE 

STATE 

561.  Collective  intervention  on  the  part  of  Catholic  or  non- 
Catholic  states  may  be  legitimately  exercised  to  protect  the  in- 
ternational rights  of  the  Church  or  to  insure  the  performance  of 
its  international  duties. 

It  should  be  considered,  however,  as  inherent  in  the  autonomy  of 
each  state  to  regulate  its  relations  with  the  Roman  Catholic  Church, 
in  so  far  as  such  relations  are  within  the  sphere  of  operation  of  pub- 
lic municipal  law,  and  to  provide,  in  accordance  with  municipal 
laws,  for  safeguarding  the  dignity  of  the  head  of  the  Church. 

The  purpose  of  the  first  part  of  this  rule  is  the  legal  protection  of  the  rights  of 
the  Roman  Cathohc  Church  which,  as  an  international  institution,  must  be  con- 
sidered as  a  person  of  the  Magna  civilas  (compare  rules  70  and  71.)  Its  rights 
(compare  rule  73)  must  be  deemed  imder  the  collective  guaranty  of  all  states, 
which  have  the  right  to  safeguard  the  interests  of  Catholic  citizens  and  their 
religious  liberty. 

The  purpose  of  the  second  part  of  the  rule,  on  the  contrary,  is  to  safeguard 
the  autonomy  of  the  state  as  regards  its  powers  over  persons,  over  the  collec- 
tivity and  any  association  belonging  to  such  collectivity, — an  autonomy  which 
cannot  be  limited  with  respect  to  the  churches  existing  in  the  state  (not  ex- 
cluding the  Roman  Catholic  Church)  in  so  far  as,  in  the  exercise  of  their  func- 
tions and  worship,  they  are  in  the  juridical  circle  within  which  the  rights  of  the 
state  must  be  exercised  with  full  independence. 

If  the  rights  of  these  two  institutions — the  state  and  the  church — each  one 
of  which  has  its  raison  d'etre,  its  own  rules  of  operation,  and  an  essentially 
distinct  purpose,  could  b*^  determined  and  fixed  by  a  solemn  declaration  made 
in  a  congress,  the  conflicts  between  the  two  powers  could  be  more  easily  ad- 
justed. Under  the  present  conditions,  it  may  well  happen  that  one  of  the 
institutions  insists  that  the  other  has  encroached  upon  its  rights.  In  order  to 
avoid  a  conflict,  such  an  occurrence  would  give  occasion  to  resort  to  all 
peaceful  means,  that  is  to  say,  to  good  oflSces,  mediation,  and  finally,  to  collec- 
tive intervention  and  arbitration. 

GENERAL   PRINCIPLE 

562.  The  rules  relating  to  collective  intervention  apply  to  all  the 
states  that  are  in  the  de  facto  society  and  must  be  considered  as 
jointly  and  severally  interested  in  maintaining  intact  the  respect 
of  international  law  and  in  restoring  its  authority  in  case  of  arbi- 
trary violation.  i 

Compare  rules  43  et  seq.;  49  et  seq.;  245. 


i 


TITLE  XX 
DUTY  OF  MUTUAL  ASSISTANCE 

GENERAL  PRINCIPLES 

563.  Civilized  states  must  consider  themselves  bound,  inde- 
pendently of  treaties,  to  do  what  the  exigencies  of  common  life 
may  require.  They  must  consider  themselves  reciprocally  bound 
to  afford  mutual  assistance  and  not  to  oppose  in  any  way  whatever 
acts  may  help  to  promote  their  reciprocal  ad  vantages  and  safeguard 
their  respective  interests. 

564.  Duties  of  mutual  assistance  and  those  arising  from  the 
foregoing  rule  cannot  be  considered  as  legal  duties  but  as  obliga- 
tions based  on  moral  law  and  on  the  comitas  gentium;  they  must 
be  applied  not  only  among  civilized  states,  but  also  govern  relations 
with  states  which  are  in  an  inferior  condition,  from  the  point  of 
view  of  culture  and  civilization. 

Compare  rules  17, 19  ei  seg.,  and  31. 

665.  Assistance  must  be  considered  especially  obligatory: 

a.  With  respect  to  ships  seeking  shelter  because  of  the  neces- 
sities or  dangers  of  navigation; 

6.  With  respect  to  vessels  which  have  suffered  a  disaster  at  sea 
or  are  shipwrecked; 

c.  With  respect  to  the  acts  necessary  for  the  administration  of 
justice  or  the  trial  of  lawsuits. 

ASSISTANCE  TO   FOREIGN   SHIPS   SEEKING   SHELTER 

566.  Each  state,  independently  of  treaties,  must  receive  foreign 
ships  in  its  ports,  whether  they  are  war  vessels  or  merchantmen, 
when  they  are  compelled  to  enter,  either  by  reason  of  the  danger- 
ous condition  of  the  sea,  or  to  repair  damages  suffered  during  the 
voyage,  or  to  procure  what  they  may  need  to  proceed  on  their  way. 

567.  Foreign  ships  compelled  by  reason  of  force  majeure  to  enter 

273 


274  INTERNATIONAL   LAW    CODIFIED 

the  territorial  waters  of  a  state  must  be  protected  and  be  exempted 
from  the  ordinary  laws  applicable  to  ships  entering  for  commercial 
purposes. 

568.  Any  ship  which,  compelled  by  a  disaster  at  sea,  wishes  to 
enter  the  ports  of  a  foreign  state,  whether  closed  or  open  to  trade, 
and  to  land  in  roadsteads,  bays,  or  on  beaches  must  display  the 
customary  signals  to  indicate  the  forced  nature  of  the  landing, 
and  may  require  that  the  local  authorities  shall  not  only  not  pre- 
vent her  from  landing,  but  give  her  all  necessary  assistance  to  make 
repairs,  take  in  provisions  and  proceed  on  her  way. 

569.  No  civilized  state  should  consider  as  a  commercial  act  the 
unloading  and  reloading  of  merchandise  by  a  foreign  ship  which 
was  obliged  hy  force  majeure  to  enter;  nor  can  it  subject  to  "com- 
mon" law  the  operations  of  revictualling  and  selling  of  damaged 
goods,  the  reshipment  of  merchandise  on  another  ship  by  one 
which,  through  damage  at  sea,  has  become  unseaworthy.  Such 
operations,  however,  must  have  been  recognized  as  necessary  and 
duly  authorized  by  the  customs  authorities. 

The  rules  applicable  to  foreign  ships  which  by  force  of  circumstances  enter 
territorial  waters,  are  ordinarily  stipulated  in  treaties  of  commerce.  When 
there  is  no  treaty,  every  question  must  be  settled  by  administrative  regulations 
in  conformity  with  the  principles  of  equity.  A  foreign  ship  which  is  forced  to 
put  into  port  cannot  be  exempt  from  the  payment  of  compensation  due  under 
the  regulations  to  private  individuals  who  have  lent  their  assistance,  for  ex- 
ample, the  local  pilots  who  steered  her  in.  But  one  should  always  consider  it 
contrary  to  the  principles  of  international  law  and  to  the  moral  duty  of  mutual 
assistance  to  regard  as  commercial  transactions  those  which  a  ship  is  com- 
pelled to  undertake  in  order  to  make  herself  seaworthy. 

570.  It  is  incumbent  on  foreign  ships  which  enter  by  force  ma- 
jeure to  conform  to  the  instructions  given  by  the  local  authorities 
according  to  the  requirements  of  the  case.  It  is  incumbent,  more- 
over, on  the  local  authorities  not  to  subject  these  ships  to  condi- 
tions which  might  be  considered  excessive  and  inconsistent  with 
the  international  duty  of  mutual  assistance. 

ASSISTANCE  IN  CASE  OF  MARITIME  DISASTER  OR  SHIPWRECK 

571.  Every  state  is  bound  to  organize  the  maritime  services 
required  to  assist  foreign  ships,  in  danger  within  territorial  waters 
or  along  the  coasts  of  the  country,  and  to  do  all  it  can  to  prevent 
shipwrecks  and  all  other  maritime  disasters. 


DUTY    OF   MUTUAL   ASSISTANCE  275 

572.  In  case  of  shipwreck  or  any  other  disaster,  it  is  the  duty  of 
the  state  which  has  jurisdiction  over  the  territorial  waters  to  pro- 
vide aid  for  the  ship  and  endeavor  to  rescue  property  and  preserve 
it  for  its  owners. 

573.  The  operations  incidental  to  salvage  must,  in  principle,  be 
undertaken  by  the  consul  of  the  state  to  which  the  ship  belongs, 
and  it  is  the  duty  of  local  authorities  to  lend  him  assistance.  In 
the  absence  of  the  consul,  the  maritime  authorities  of  the  port  and 
the  civil  authorities  of  the  coast  where  the  disaster  occurred  must 
be  considered  as  bound  to  undertake  salvage  and  to  recover  the 
wreckage. 

The  obligation  to  help  ships  in  danger  is  a  duty  of  humanity.  Certain  states 
have  in  their  laws  made  it  a  legal  obligation.  Italy,  for  example,  in  the  Mer- 
chant Marine  Code,  provides  as  follows  in  article  120:  "  The  captain  of  a  na- 
tional vessel,  meeting  any  ship,  even  foreign  or  enemy,  in  danger  of  being 
\\Tecked,  must  hasten  to  her  assistance  and  help  her  in  every  possible  way." 
Article  385  of  the  same  Code  punishes  the  captain  or  master  of  a  national  vessel 
by  a  fine  from  200  to  1000  lire,  and  bj^  suspension  from  his  position  from  six 
months  to  a  year,  if  he  negligently  fails  to  assist  a  ship  in  danger. 

574.  The  state  must  refrain  from  exercising  any  royal  or  fiscal 
right  to  wreckage  or  to  the  ship  wrecked  in  territorial  waters,  and 
also  from  the  right  to  appropriate  articles  cast  up  by  the  sea  in 
consequence  of  a  shipwreck  or  a  disaster  on  the  high  sea. 

575.  The  organization  of  the  salvage  service  must  be  considered 
as  within  the  duty  of  international  assistance.  Accordingly,  each 
government  must  defray  the  expenses  required  for  such  service, 
and  cannot  ask  reimbursement  from  the  foreign  state  whose 
merchant  vessel  was  wrecked.  It  may  only  request  the  repay- 
ment of  the  actual  expenses  incurred  in  order  to  rescue  the  ship 
and  the  property  wrecked. 

RULES   RELATING   TO   SALVAGE    AND    PROPERTY   SALVAGED 

576.  It  is  incumbent  on  each  state  to  provide  by  legislation 
that  all  local  authorities  and  especially  maritime  authorities  shall 
give  assistance  to  the  wrecked,  shall  undertake  salvage  and  pro- 
tect the  rights  of  shipowners  and  of  property  belonging  to  the 
shipwreck. 

577.  The  appropriation  of  articles  proceeding  from  a  wreck  or 
any  other  maritime  disaster  should  be  prohibited. 

It  should  be  considered  unlawful  on  the  part  of  salvors  to  make 


270  INTERNATIONAL   LAW   CODIFIED 

exaggerated  salvage  claims.  It  is  the  duty  of  the  local  authorities 
to  see  that  all  salvors  obtain  a  reward  commensurate  with  the 
service  rendered;  including  the  promptness  of  the  rescue  or  sal- 
vage, the  danger  incurred,  and  the  value  of  the  property  saved. 

578.  All  property  saved  from  a  shipwreck  must  be  kept  in  a  safe 
place,  at  the  disposition  of  its  owners,  under  the  care  of  the  local 
authorities,  who  must  give  public  notice  of  the  salvage  and  invite 
the  interested  parties  to  prove  their  claims  to  the  property  saved. 

579.  The  local  authorities  may  order  the  sale  of  perishable 
merchandise  or  of  goods  whose  preservation  would  cause  excessive 
expense,  and  hold  the  proceeds  at  the  disposal  of  the  owners. 

Moreover,  they  may  order  the  sale  of  property  saved  whenever 
such  course  is  necessary  to  pay  salvage  expenses  and  the  expenses 
of  feeding  the  shipwrecked  persons  and  sending  them  back  to  their 
own  country. 

580.  The  state  may  appropriate  property  saved  or  the  price  of 
property  sold,  only  when,  after  a  reasonable  time  following  public 
notice  to  the  interested  parties  to  present  claims,  none  shall  have 
appeared,  and  the  property  saved  may,  therefore,  be  presumed  to 
be  without  an  owner. 

581.  A  ship  submerged  in  territorial  waters  without  leaving  any 
apparent  trace,  shall  be  considered  abandoned  by  her  owners,  or 
by  those  interested  in  her  and  her  cargo,  when,  notwithstanding 
public  notice,  no  one  has  appeared  to  undertake  salvage  operations 
within  a  reasonable  time  indicated  in  the  notice  (3  months)  or 
when  the  interested  parties,  having  commenced  salvage,  have 
abandoned  it  for  a  reasonable  time  (4  months)  so  as  to  permit  the 
presumption  that  they  intend  to  abandon  the  ship  and  cargo. 
The  property  may  then  be  turned  over  to  the  Treasury  or  to  the 
actual  salvors. 

These  rules  are  for  the  most  part  in  accordance  with  those  adopted  by  Italy 
(chap.  XII,  title  II  of  the  Codice  -per  la  marina  mercantile). 

The  statutes  of  the  Italian  maritime  cities  sanctioned  the  most  liberal  prin- 
ciples with  respect  to  assistance  in  case  of  disaster  or  shipwreck.  (See  the 
Statute  of  Pisa  of  1160,  Constituta  usus,  Pardessus,  Lois  maritimes,  v.  4,  583; 
Statute  of  Rimini  of  1303,  Pardessus,  id.,  v.  5,  p.  113.) 

ASSISTANCE   TO    SHIPWRECKED   SAILORS 

582.  It  is  the  duty  of  every  civilized  state  to  assist  foreign 
sailors  who,  owing  to  shipwreck  or  other  maritime  disaster,  are 


DUTY    OF   MUTUAL   ASSISTANCE  277 

without  means  and  (in  the  absence  of  a  consul  of  the  state  whose 
flag  the  ship  flies)  to  provide  for  them  until  they  can  find  employ- 
ment or  return  home. 

The  state  may,  however,  demand  reimbursement  for  expenses 
incurred  for  the  maintenance  and  return  to  their  own  countr}^  of 
foreign  shipwrecked  sailors,  unless  otherwise  provided  by  treaty. 

ASSISTANCE  TO  FACILITATE  THE  ADMINISTRATION 

OF  JUSTICE 

COMMISSIONS   ROGATORY 

583.  It  must  be  considered  an  international  duty  of  mutual 
assistance  on  the  part  of  states,  independently  of  treaties,  recip- 
rocally to  co-operate  in  every  possible  way  in  the  administration 
of  justice  in  civil  and  criminal  cases. 

584.  It  must  always  be  deemed  a  reciprocal  moral  duty  for  the 
respective  judges  of  two  states  to  execute  commissions  rogatory 
and  to  proceed,  on  request  of  the  foreign  judge,  to  hear  witnesses, 
take  depositions  on  interrogatory  or  undertake  judicial  acts  of  any 
kind  which  may  be  useful  to  the  foreign  court  having  jurisdiction 
of  the  case  in  the  administration  of  justice. 

Article  171  of  the  Italian  consular  law  reads  as  follows:  "Consuls  are  auth- 
orized to  execute  commissions  rogatory  which  are  addressed  to  them  by  foreign 
tribunals  for  the  purpose  of  undertaking  personal  visits,  making  inspections 
and  hearing  witnesses,  and  of  receiving  the  depositions  of  citizens  resident  or 
temporarily  sojourning  in  the  consular  district." 

585.  It  is  desirable,  in  order  to  hasten  the  proceedings,  to  admit 
direct  correspondence  between  the  judges  of  civilized  states,  leav- 
ing it  to  the  judge  to  decide  as  to  the  legality  of  the  rogatory  com- 
mission and  the  expediency  of  executing  it. 

In  case  of  the  incompetence  of  the  court  upon  which  the  request 
is  made,  it  should  be  bound  to  transfer  the  commission  rogatory 
to  the  competent  territorial  court,  so  advising  the  commissioning 
court. 

The  rule  of  direct  correspondence  between  the  respective  judges  is  admitted 
in  the  convention  between  Austria  and  Italy  of  June  11-21,  1867,  by  which  the 
two  governments  reciprocally  consented,  in  the  interest  of  the  dispatch  of 
civil  and  criminal  proceedings,  to  allow  neighboring  judicial  authorities  to 
correspond  directly  with  one  another  in  certain  cases. 


278  INTERNATIONAL   LAW   CODIFIED 

EXECUTION   OF   COMMISSIONS   ROGATORY 

586.  Judicial  authorities  must  not  consider  themselves  obligated 
to  execute  commissions  rogatory  in  the  absence  of  a  special  con- 
vention between  the  two  states.  If,  however,  the  commission 
should  be  executed  by  reason  of  the  duty  of  mutual  assistance, 
such  voluntary  execution  would  imply  the  obligation  of  reciprocity 
between  the  two  states. 

587.  The  judge  to  whom  the  commission  is  issued  cannot  exe- 
cute a  rogatory  commission  which  would  violate  public  territorial 
law.  In  case  the  commission  does  not  violate  it,  the  judge  should 
follow  the  law  of  his  own  country  in  the  matter  of  the  formalities 
of  procedure  relating  to  the  execution  of  the  commission. 

When,  owing  to  the  necessities  of  foreign  justice,  a  special  form 
of  procedure  may  be  required  and  indicated  in  the  commission 
rogatory,  the  territorial  judge  may  follow  the  formalities  of  pro- 
cedure indicated,  provided  they  are  not  contrary  to  the  provisions 
of  the  territorial  law. 

The  purpose  of  this  rule  is  to  dispel  the  difficulty  which  may  present  itself 
when,  under  foreign  law,  the  complaint  cannot  be  valid  unless  accompanied 
by  certain  formalities  of  procedure.  In  such  case,  by  reason  of  the  duty  of 
mutual  assistance,  the  judge  to  whom  the  commission  is  issued,  may,  when  the 
local  law  is  not  opposed  and  the  required  formality  is  practicable,  comply  with 
the  formalities  indicated  in  the  commission  rogatory. 

ASSISTANCE   IN   THE   ADMINISTRATION    OF   CRIMINAL  JUSTICE 

588.  It  is  incumbent  upon  states  reciprocally  to  assist  each 
other  in  the  administration  of  criminal  law  so  as  not  to  allow  an 
individual  suspected  of  an  offense  to  escape  the  judgment  of  the 
competent  tribunal,  and  not  to  allow  him  when  convicted,  to  en- 
joy immunity  from  punishment. 

Beccaria  said  that  nothing  can  prevent  crime  better  than  the  firm  conviction 
that  the  offender  cannot  find  any  place  to  escape  punishment. 

589.  By  reason  of  the  moral  duty  of  reciprocal  assistance,  in- 
dependently of  treaties,  it  is  the  duty  of  states  to  co-operate  in 
bringing  about  the  regular  course  of  proceedings  for  the  prosecu- 
tion of  "common"  law  offenses  and  to  permit  the  foreign  judge 
competent  to  try  the  case  to  request  the  territorial  judge  to  exe- 
cute, within  the  limits  of  his  jurisdiction,  any  judicial  acts  re- 
quested of  him  in  the  interest  of  justice. 


DUTY    OF    MUTUAL   ASSISTANCE  279 

No  judicial  act  may  be  requested  or  executed  in  the  case  of  a 
prosecution  involving  a  political  offense. 

590.  It  should  be  considered  a  duty  of  civilized  states  to  deter- 
mine by  means  of  extradition  treaties  the  reciprocal  obligation  to 
deliver  over  fugitive  criminals  accused  of  a  "common"  law  offense 
— not  in  the  nature  of  a  political  offense — or  tried  and  convicted  for 
such  an  offense  without  having  paid  the  penalty,  who  have  taken 
refuge  on  their  respective  territories. 

591.  In  the  absence  of  an  extradition  treaty,  or  in  the  case  of  an 
offense  not  provided  for  in  the  treaty,  the  authorities  of  the  country 
where  the  offense  was  committed  may,  however,  request  extra- 
dition. 

The  state  upon  which  the  demand  is  made,  may  in  accordance 
with  the  requirements  of  the  territorial  law  concerning  extradi- 
tion deliver  the  criminal  accused  of  a  "common"  law  offense  to 
the  state  where  the  offense  was  committed. 

In  case  an  offense,  which  under  the  territorial  criminal  law  and 
under  that  of  the  state  where  the  offense  was  committed  is  punish- 
able by  a  restriction  of  personal  liberty  for  not  less  than  three  years, 
the  government  of  the  state  of  refuge  should  either  offer  extradi- 
tion or  punish  the  criminal  according  to  territorial  law. 

The  surrender  of  criminals  must  undoubtedly  be  considered  a  legal  obliga- 
tion when  it  is  stipulated  in  an  extradition  treaty.  Furthermore,  it  must  be 
admitted  that  all  states  being  interested  in  maintaining  order  and  general  se- 
curity and  in  preventing  the  political  injury  resulting  from  the  non-punishment 
of  offenses,  the  surrender  of  the  criminal  to  his  natural  judge  (who  is  the  judge 
of  the  place  where  the  offense  was  committed)  must  be  considered  a  moral 
duty  reciprocal  on  the  part  of  all  states  desiring  the  proper  administration 
of  criminal  justice.  Of  course,  it  is  incumbent  upon  the  government  of  the 
country  where  the  criminal  took  refuge  to  see  that  the  judicial  authorities, 
after  examining  all  the  facts,  decide  whether  or  not  the  extradition  may  be 
granted.  WTicn,  from  all  the  facts,  a  serious  presumption  of  the  guilt  of  the 
criminal  arises,  a  refusal  to  surrender  him  must  be  considered  contrary  to  the 
principles  of  modern  law  which  tends  to  strengthen  the  idea  of  solidarity  of 
civilized  states  in  the  punishment  of  offenders  to  safeguard  the  respect  and 
authority  of  law,  a  conception  more  just  and  rational  than  that  which  prevailed 
in  former  times,  which  was  inspired  by  ideas  of  antagonism,  indifference  and 
egotism. 

Compare:  Fiore,  EffetLi  intemazionali  delle  sentenze penali  e  deU'estradizione, 
Turin,  Loescher,  1877;  and  Droit  p6nal  international,  translated  by  Ch.  An- 
toine,  Paris,  P^done-Lauriel,  1880. 

The  new  Italian  Penal  Code  sanctions  the  principle  that  a  foreigner,  who 
has  committed  abroad,  to  the  prejudice  of  another  foreigner,  an  offense  punish- 
ftble  under  Italian  law  by  a  penalty  restrictive  of  personal  liberty  for  at  least 


280  INTERNATIONAL   LAW   CODIFIED 

three  years,  and  who  has  taken  refuge  in  Italy,  must  be  punished  even  if  there 
is  no  extradition  treaty,  and  in  such  case  extradition  must  be  offered  by  the 
ItaHan  government  to  the  government  of  the  state  where  the  offense  was 
committed,  or  to  that  of  his  country,  and  when  neither  government  accepts 
such  offer,  he  must  be  tried  by  the  Italian  courts  at  the  request  of  the  Minister 
of  Justice,  and  punished,  subject  to  a  reasonable  diminution  of  the  penalty 
(art.  6). 

592.  The  duty  of  reciprocal  assistance  for  the  proper  adminis- 
tration of  criminal  justice,  should  not  be  considered  as  limited 
where  a  preliminary  examination  may  be  required  by  reason  of  a 
prosecution  directed  against  a  citizen  of  the  state  whose  assistance 
is  requested,  said  citizen  having  been  arrested  by  a  foreign  govern- 
ment and  detained  for  trial.  The  same  would  apply  where  the 
extradition  of  a  citizen  is  requested. 

This  rule  meets  with  very  grave  contradictions.  The  opposite  principle  is, 
indeed,  sanctioned  by  legislation.  (Compare  art.  9  of  the  Italian  penal  code; 
art.  36  of  the  Austrian  criminal  code;  §  9  of  the  preliminary  provisions  of  the 
criminal  code  of  the  German  Empire;  Belgian  law  on  extradition  of  March 
15,  1874;  Dutch  law  on  extradition  of  April  6,  1885.)  The  extradition  of 
citizens  is  usually  excluded  by  treaties.  Therefore,  it  is  contrary  to  the  most 
generally  admitted  principles  to  surrender  a  citizen  in  the  absence  of  a  pro- 
vision to  that  effect  in  the  extradition  treaty.  Yet  we  hold  the  contrary  view, 
because  a  country  ought  not  to  consider  criminals  as  its  citizens,  nor  should 
it  object  to  their  being  made  answerable  for  their  offenses. 

See  Fiore,  Effetli  internazionali  delle  sentenze  penali  e  dell'  estradizione,  chap. 
VII,  Turin,  Loescher,  1877;  and  Droit  penal  international  et  de  V extradition, 
part  2,  §§  343,  374,  translated  by  Antoine,  Paris,  Pedone-Lauriel,  1880. 

In  Great  Britain  and  the  United  States,  the  non-surrender  of  a  citizen  is 
not  considered  an  absolute  rule;  on  the  contrary,  they  admit  that  the  criminal 
citizen  as  well  as  the  foreigner,  must  not  escape  the  jurisdiction  of  the  state 
where  the  offense  was  committed.  Accordingly,  in  certain  extradition  treaties 
concluded  by  Great  Britain,  and  especially  in  those  of  1843  with  France  and  of 
1855  with  Switzerland,  the  exception  in  favor  of  citizens  is  not  expressed. 
Nevertheless,  as  the  laws  of  several  states  forbid  the  extradition  of  citizens. 
Great  Britain  and  the  United  States  in  their  most  recent  extradition  treaties 
have  had  to  admit  this  restriction.  The  United  States  in  the  convention  of 
June  16,  1852,  with  Prussia  (Malloy's  Treaties,  p.  1501)  stipulated  that  "none 
of  the  contracting  parties  shall  be  bound  to  deliver  up  its  own  citizens  or  sub- 
jects under  the  stipulations  of  this  convention." 

[By  article  I  of  the  extradition  treaty  of  March  23, 1868,  between  the  United 
States  and  Italy  the  two  governments  mutually  agreed  to  deliver  up  all  "per- 
sons," etc.  It  was  held  by  the  Supreme  Court  in  the  celebrated  case  of  Porter 
Charlton  {Charlton  v.  Kelly,  229  U.  S.  447)  that  "persons"  included  citizens 
of  the  country  of  asylum.  The  position  of  the  United  States  has  been  that 
citizens  were  included  among  the  persons  subject  to  extradition  unless  ex- 
pressly excluded.  (See  the  able  argument  of  Secretary  of  State  Blaine  in 
Foreign  Relations,  1890,  pp.  557  et  seq.)  The  United  States  has  concluded 
treaties  both  with  and  without  the  reservation  as  to  citizens.  Among  those 
containing  no  limitation  or  qualification  are  the  treaty  with  Great  Britain, 


DUTY    OF    MUTUAL   ASSISTANCE  281 

August  9,  1842,  extended  July  12,  1SS9,  Malloy's  Treaties,  pp.  650  and  740; 
with  Italy,  March  23,  1868,  iHd.,  p.  966;  with  Venezuela,  August  27,  1860, 
iJbtd.,  p.  1845;  and  with  Ecuador,  June  28,  1872,  ibid.,  p.  436.  The  Supreme 
Court  in  Charlton  v.  Kelly,  229  U.  S.  447,  467,  decided  that  "there  is  no  prin- 
ciple of  international  law  by  which  citizens  are  excepted  out  of  an  agreement 
to  surrender  'persons,'  where  no  such  exception  is  made  in  the  treaty  itself." 
It  has  come  to  be  the  preponderant  practice  among  many  nations,  however, 
to  refuse  to  deliver  up  their  citizens.  The  ablest  discussion  of  the  whole 
question  is  to  be  found  in  J.  B.  Moore,  A  treatise  on  extradition,  etc.,  Boston, 
1891,  V.  I,  Ch.  v.— Transl.l 


JUDICIAL   ASSISTANCE   TO   INDIVIDUALS 

593.  No  civilized  state  should  refuse  the  assistance  of  its  courts 
to  foreigners  requesting  the  legal  protection  of  their  rights. 

All  civilized  states  must  admit  in  principle  that  the  judicial 
machinery  should  not  be  considered  an  exclusive  privilege  for  the 
benefit  of  citizens,  but  that  it  is  their  supreme  duty  to  assure  its 
benefits  to  all  who  require  it,  whether  citizens  or  foreigners. 

594.  Every  state,  independently  of  treaties,  must  secure  by 
law  the  legal  protection  of  the  rights  of  foreigners,  by  granting  to 
them,  as  to  citizens,  the  privilege  of  using  all  legal  means  for  the 
preservation  and  legal  protection  of  their  rights. 

595.  It  should  be  considered  contrary  to  modern  international 
law  to  compel  the  foreign  plaintiff  to  furnish  in  advance  security 
for  the  costs  of  the  suit  in  case  he  is  nonsuited. 

It  is  also  desirable  that  every  state  grant  the  privilege  of  suing 
in  forma  ^pauperis  to  destitute  foreigners  as  to  its  own  citizens, 
when  the  competent  territorial  authorities  decide  that  in  the  par- 
ticular circumstances  of  the  case  the  foreigner  is  entitled  to  avail 
himself  of  that  privilege. 

The  obligation  to  furnish  security  for  the  costs  of  a  suit  (cautio  judicatum 
solifi)  is  established  in  various  countries,  unless  expressly  renounced  by  treaty. 

In  France,  the  obligation  to  furnish  such  securit}'  is  provided  in  article  16 
of  the  Civil  Code  as  amended  by  the  law  of  March  5,  1895,  which  reads:  "In 
all  cases,  the  foreign  plaintiff,  principal  or  intervenor,  shall  be  obliged  to  give 
security  for  the  costs  of  the  litigation  and  the  eventual  damages,  etc." 

In  Italy,  on  the  contrary,  not  only  is  no  security  required  of  the  foreigner, 
but  if  he  fulfills  the  conditions  required  to  obtain  credit  from  the  government 
for  the  expenses  of  the  suit,  under  the  law  of  December  16,  1865,  relating  to 
suits  of  poor  persons,  he  may  in  that  respect  enjoy  the  same  privilege  as  citi- 
zens. In  fact,  article  8  provides  that,  fonMgners,  if  they  comply  with  the  re- 
quirements of  the  law,  are  not  excluded  from  the  privilege  of  suing  in  forma 
pauperifi. 


TITLE  XXI 
INTERNATIONAL    RESPONSIBILITY    OF    THE    STATE 

FUNDAMENTAL   PRINCIPLES 

596.  Every  state  which  commits  an  act  violative  of  the  right  of 
another  state  or  of  private  individuals,  in  its  character  as  a  sov- 
ereign or  by  persons  entrusted  with  the  exercise  of  public  power, 
incurs  responsibility  and  must  make  compensation  for  the  injury 
inflicted. 

Every  state  having  to  exercise  its  rights  and  all  the  functions  assigned  to  the 
sovereign  in  conformity  with  the  rules  of  international  law,  must  exercise  its 
sovereign  powers  without  violating  them.  That  is  the  principle  of  its  general 
responsibility,  which  may  be  incurred  in  the  exercise  of  legislative,  judicial,  or 
executive  powers,  whenever  it  does  not  respect  the  rules  of  law  governing 
their  exercise.  It  is  our  purpose  here  to  examine  the  particular  responsibility 
which  may  result  from  the  acts  of  the  government  or  from  those  of  public 
officers  causing  damage  and  giving  rise  to  the  obligation  of  indemnification 
and  reparation. 

597.  The  international  responsibility  of  the  state,  according  to 
the  circumstances  of  the  case,  may  be  either  direct  or  indirect. 

It  is  considered  direct  whenever  it  arises  as  a  consequence  of 
acts  committed  by  the  government  or  with  its  authorization. 

It  is  considered  indirect  when  it  arises  from  acts  done  by  public 
officers,  and  even  in  certain  cases  by  individuals,  when  the  injury 
may  be  regarded  as  inflicted  through  the  fault  of  the  government 
whose  duty  to  prevent  the  injury  it  has  negligently  failed  to  ac- 
complish. 

598.  It  is  incumbent  upon  every  state  to  decide  whether  the 
obligation  to  repair  the  damage  caused  by  persons  vested  with 
public  power  should  fall  upon  the  state  or  upon  its  officers  by  apply- 
ing the  rules  of  public  administrative  law  or  special  municipal 
laws,  or  in  their  absence,  the  general  principles  of  law,  and  to  de- 
termine the  damages  due  to  the  injured  parties,  whether  alien  or 
national. 

283 


INTERNATIONAL   RESPONSIBILITY    OF   THE    STATE  283 

DIRECT   RESPONSIBILITY 

599.  When  the  government  of  a  state,  by  reason  of  momentary 
exigencies  and  public  necessities,  takes  action  which  results  in  an 
injury  to  a  foreign  state  or  to  its  citizens,  it  is  bound  to  repair  the 
damage.  The  state  must  be  held  directly  responsible  therefor, 
even  though  the  action  of  the  government  may  be  deemed  lawful 
and  justified  as  such. 

In  order  to  understand  our  rules  fully,  it  must  be  observed  that  the  legal 
exercise  of  sovereign  powers  ma}'  exclude  in  principle  any  international  responsi- 
bility of  the  state.  No  one,  in  effect,  may  forbid  the  state  from  doing  what- 
ever public  necessities  require,  and  whatever  may  be  considered  as  within  the 
limits  of  legality.  Therefore,  if  a  government,  even  in  doing  what  it  has  a 
right  to  do,  should  be  led  to  injure  the  property  rights  of  others,  it  could  be 
held  with  reason  that  it  ought  not  to  be  bound  to  repair  the  damage,  rejecting 
any  claim  of  the  injured  parties  to  indemnification. 

The  right  of  private  persons  must  necessarily  be  subordinated  to  that  of  the 
collectivity  and  of  the  sovereignty  which  represents  it.  Therefore,  the  acts 
of  the  sovereign  to  provide  for  the  social  requirements  and  defense  of  the  rights 
of  the  state  cannot  imply  any  international  responsibility.  Yet,  in  our  opin- 
ion, it  cannot  be  maintained  that  the  injured  person  should  not  receive  any 
indemnity  and  that  the  responsibility  of  the  state  is  not  to  be  admitted  as  re- 
gards indemnification  for  the  injury  done  to  foreigners  through  the  necessity 
of  providing  for  the  protection  of  the  social  interests. 

Consequently,  we  believe  that  the  case  requires  the  application  by  analogy 
of  the  general  principles  which  justify  expropriation  on  grounds  of  public 
utility,  and  that  a  just  indemnity  should  be  recognized.  (Compare:  Fiore, 
Questioni  di  dirillo:  Sulla  responsabilild  dello  Stato,  pp.  364  et  seq.) 

Our  rule  might  find  application  in  a  case  where,  during  a  revolution,  civil 
and  mihtary  authorities  exercise  exceptional  powers  justifiable  under  inter- 
national or  public  municipal  law,  the  exercise  of  which  inflicts  a  real  and  ma- 
terial damage  upon  foreigners,  as,  for  instance,  in  case  of  the  bombardment  of 
a  fortified  commercial  city. 

600.  The  direct  responsibility  of  the  state  should  be  admitted 
whenever  the  damage  can  be  considered  as  a  consequence  of  its 
own  act. 

We  consider  as  within  this  rule  the  maintenance  by  a  state  of  a 
system  of  laws  recognized  as  ineffectual  in  the  repression  of  in- 
juries to  the  rights  of  a  friendly  state  or  of  its  citizens  and  in  the 
reparation  of  the  resulting  damage,  provided  the  defects  of  the 
system  are  serious  and  notorious  and  the  state  has  failed  promptly 
to  remedy  them. 

601.  It  is  incumbent  upon  every  state  in  good  faith  to  do  every- 
thing necessary  to  ensure  the  respect  of  the  rules  of  international 


284  INTERNATIONAL    LAW    CODIFIED 

law  by  private  individuals,  and  to  repress  acts  prejudicial  to  a 
foreign  state  or  foreign  citizens. 

602.  A  government  which  has  honestly  and  in  good  faith  taken 
all  possible  measures  to  prevent  injurious  acts,  may  base  upon 
that  fact  an  allegation  of  a  presumption  of  non-responsibility  on 
its  part. 

This  presumption  should  not  be  overcome  by  the  mere  fact  that 
the  government  has  not  resorted  to  measures  inconsistent  with  the 
political  institutions  of  the  state  or  has  been  unable  to  amend  its 
legislation  so  as  to  put  an  end  to  the  resulting  inconveniences. 

In  order  to  make  quite  clear  the  suggestive  idea  of  the  foregoing  rules  relat- 
ing to  the  inherent  defects  in  legislation  and  the  measures  designed  to  repair 
injuries  inflicted  on  other  states  or  foreigners,  it  must  be  noted  that  in  order  to 
determine  in  practice  the  efficacy  of  a  system  of  law,  it  is  necessary  to  ascer- 
tain exactly  whether  or  not  such  system  can  prevent  the  injurious  acts.  When 
the  defects  of  such  legislation  are  serious  and  notorious,  and  especially  when 
the  necessity  of  amending  the  system  is  recognized  by  the  states  assembled  in 
a  Congress  (as  is  the  case  with  respect  to  Turkey,  for  instance),  one  could  not 
reasonably  assert,  as  a  bar  to  responsibility,  that  the  government  had  resorted 
to  all  the  means  at  its  disposal.  Valid  presumptions  in  the  state's  favor  could 
be  admitted  only  when  the  defects  and  inefficiency  of  the  legislation  have  not 
yet  been  established.  It  is  necessary,  therefore,  to  examine  carefully  the 
circumstances  of  the  case  to  determine  whether  or  not  any  of  the  rules  proposed 
should  be  applied. 

603.  The  responsibility  of  the  state  cannot  be  denied  for  the 
voluntary  commission  of  acts  forbidden  by  international  law 
whenever  damage  has  thereby  been  caused  to  another  state  or  its 
citizens. 

Any  act  forbidden  by  international  law  must  be  considered  unlawful,  and 
when  it  can  be  charged  against  a  person  exercising  public  power,  it  must 
naturally  imply  the  international  responsibility  of  the  state  and  its  obligation 
to  make  due  reparation.  In  such  case,  we  must  apply  the  principles  governing 
civil  responsibihty  arising  from  tortious  injuries. 

INDIRECT   RESPONSIBILITY 

604.  The  indirect  responsibility  of  the  state  for  the  acts  of  its 
officers  or  private  individuals  who  have  committed  an  injury  upon 
others  must  be  admitted  whenever  the  government  has  failed  to 
take  all  measures  necessary  to  prevent  the  injurious  acts. 

This  rule  is  based  on  the  theory  of  the  Roman  jurisconsults  in  the  matter  of 
responsibility,  which  may  also  result  from  the  negligent  omission  (in  case  of 
an  injury  caused  by  others)  to  do  whatever  one  was  bound  to  do  to  prevent 


INTERNATIONAL    RESPONSIBILITY    OF   THE   STATE  285 

the  damage:  qui  noTi  facit  qitnd  fncere  dehcl.  mdetur  facere  adversus  ea  quia  non 
facil  (Leg.  121.  Dig.  De  divends  regulis  juris.  50,  17)  See  Sourdat,  Traile 
generale  de  la  responsabilile  ou  de  I'action  en  dommages-inlerets  en  dehors  des 
contrais. 

605.  The  responsibility  of  the  state  for  the  acts  of  others  may 
g;row  out  of  the  negHgence  or  grave  indiscretion  of  the  government. 

The  promptness  with  which  each  government  is  bound  to  pre- 
vent injurious  acts  forbidden  under  international  law,  must  be 
judged  according  to  the  contingencies  and  circumstances  of  the 
case,  the  interests  involved,  and  the  degree  of  possibility  of  antic- 
ipating events  which  might  inflict  injury  upon  a  friendly  state  or 
its  citizens. 

It  must  be  admitted  in  principle  that  every  civilized  government  is  bound  to 
prevent,  and  that  it  is  at  fault  when  it  has  not  done  everything  that  it  should 
to  prevent  known  violations  of  international  law  and  injuries  to  the  property 
rights  of  foreign  states  or  citizens.  Nevertheless,  concretely,  negligence  may 
be  determined  by  the  imminence  of  the  danger  and  the  possibility  of  anticipat- 
ing it.  Effective  responsibility  and  the  obligation  to  repair  a  damage  can  arise 
only  in  consequence  of  a  fault  imputable  to  the  government  and  it  is  only  by 
taking  circumstances  into  account  that  it  is  possible  to  determine  the  com- 
parative degree  of  fault. 

606.  A  state  should  be  held  responsible  for  voluntary  failure  of 
prompt  action,  when,  having  had  cognizance  of  the  event  respon- 
sible for  the  injury,  it  has  not,  in  order  to  prevent  its  effects,  em- 
ployed the  means  at  its  disposal  or  those  it  could  readily  obtain 
from  the  legislative  power. 

The  extent  of  the  responsibility  of  the  state  should  be  propor- 
tionate to  the  imminence  or  danger  of  the  injury  and  the  possibility 
of  preventing  it. 

607.  The  responsibility  of  the  state  for  culpable  omission  on  the 
part  of  the  government  should  be  admitted  when  it  has  not  done 
everything  possible  to  prevent  others  from  committing  an  in- 
jurious act. 

RESPONSIBILITY    FOR    ACTS   OF   OFFICERS 

608.  The  subsidiary  responsibility  of  the  state  may  be  admitted 
for  the  acts  of  its  public  officers  who  have  caused  injury  to  foreign 
interests,  when  they  have  abused  or  exceeded  their  authorized 
powers  or  when,  even  in  the  absence  of  express  authorization  of 
the  government,  there  is  tacit  connivance  on  its  part. 

This  responsibility  should  be  recognized  when  the  government: 


286  INTERNATIONAL   LAW    CODIFIED 

a.  Having  known  of,  in  sufficient  time  to  prevent,  the  proposed 

unlawful  act  of  the  public  officer  and,  being  able  to  prevent  it, 

has  failed  to  do  so; 
h.  Having  had  sufficient  time  to  annul  the  act  of  its  officer  or 

to  prevent  its  detrimental  effects,  it  failed  immediately  to 

annul  it  or  prevent  its  injurious  effects; 

c.  Alleging  ignorance  of  the  act  intended  by  the  officer  may, 

under  the  circmnstances,  be  considered  as  in  bad  faith  or 
culpable; 

d.  Having  been  informed  either  through  official  channels,  or 
trustworthy  information,  of  the  act  committed,  it  failed  to  re- 
primand the  officer  immediately  and  take  the  necessary  meas- 
ures to  arrest  the  detrimental  effects  of  the  act  and  prevent 
its  future  recurrence. 

See,  Oppenheim,  International  law,  §§  157  et  seq. 

609.  The  responsibility  of  the  state  arising  out  of  the  acts  of 

public  officers  may  be  transformed  into  true  direct  responsibility 

whenever  it  is  possible  to  establish  from  the  circumstances  that 

the  officers  have  acted  in  obedience  to  the   instructions  of   the 

government. 

This  would  undoubtedly  be  the  case  when,  in  the  different  sections  of  the 
country,  officers  have  acted  uniformly,  thus  giving  the  impression,  beyond  all 
possible  contradiction,  that  they  must  have  obeyed  official  instructions. 

610.  The  indirect  responsibility  of  the  state  for  the  acts  of 
public  officers  should  be  denied  when,  under  municipal  law,  the 
injured  party  may  have  recourse  to  the  courts  effectively  to  compel 
the  officer  to  make  amends  for  the  injury  he  has  inflicted  on 
foreigners. 

The  difficulties  connected  with  the  responsibility  of  the  state  due  to  the  acts 
of  its  officers  are  very  complex,  not  only  in  international  law,  but  even  in 
public  municipal  law.  It  must  be  admitted  in  principle  that  foreigners  cannot 
claim  a  greater  advantage  than  citizens.  For  applications  of  the  rules  relating 
to  the  international  responsibility  of  states,  see,  Calvo,  Droit  internal.,  §§  1266 
et  seq.;  Bonfils,  Manuel  de  droit  international  public,  §§  324-352. 

The  responsibility  of  the  state  arising  from  acts  of  its  officers  must  always 
be  considered  as  based  on  the  presumption  of  culpability  of  the  government 
for  lack  of  promptness  in  doing  what  it  should  have  done.  It  may  be  negli- 
gence on  the  part  of  the  government  when  it  has  failed  to  take  the  measures 
required  by  the  most  elementary  prudence  to  prevent  the  injurious  act,  or  to 
arrest  or  minimize  its  effects.  It  should,  moreover,  be  considered  necessary  in 
order  to  fix  responsibility  on  the  state,  that  the  damage  shall  have  been 
inflicted  in  the  exercise  of  the  officer's  duties. 


INTERNATIONAL   RESPONSIBILITY    OF    THE   STATE  287 

RESPONSIBILITY    OF    THE    STATE    ARISING    FROM    ACTS    OF    PRIVATE 

PERSONS 

611.  The  indirect  responsibility  of  tiie  state  arising  out  of  acts 
of  private  persons  to  the  injury  of  foreign  states  or  citizens  can  be 
predicated  only  when  the  government  may  be  considered  as  obli- 
gated to  prevent  the  acts  and  has  omitted  to  do  what  it  should 
have  done,  or  when  it  may  be  reasonably  presumed  that  the 
government  has,  with  evident  culpability,  allowed  private  indi- 
viduals to  commit  injurious  acts  which  it  was  its  duty  to  prevent, 
or  when  it  failed  to  make  use  of  all  the  means  at  its  disposal  to 
arrest  their  effects. 

In  principle,  the  indirect  responsibility  of  the  state  arising  from  the  acts  of 
others  cannot  be  admitted.  The  basis  of  this  responsibihty  must  always  be 
culpable  omission  of  a  duty  legally  or  morally  imposed  upon  it.  There  must 
be  a  general  obligation  on  the  part  of  the  government,  with  respect  to  an  in- 
jurious act,  to  do  something  on  its  own  part  (to  exercise  surveillance,  to  pre- 
vent, or  to  punish)  in  order  to  raise  the  presumption  of  fault  by  reason  of  an 
omission  to  do  something  it  was  bound  to  do.  (Compare:  Fiore,  Quesiioni 
di  dirillo,  p.  295,  Turin,  Unione  Tipografico-Editrice,  1904.) 

The  proposed  rule  would  find  its  application  in  time  of  war  with  regard  to  a 
state  v/hich  had  declared  its  neutrality.  Neutrality  not  only  implies  the 
obligation  of  the  government  to  refrain  from  any  direct  assistance,  but  also 
that  of  preventing  private  persons  from  giving  assistance  to  the  belligerents 
and  organizing  it  on  the  territory  of  the  state  which  has  declared  its  neutrality. 
The  indirect  responsibility  of  the  state  should  be  conceded  when  the  govern- 
ment has  negligently  allowed  private  individuals  to  organize  on  its  territory 
means  of  assistance  of  a  nature  hostile  and  prejudicial  to  one  of  the  belligerents. 

These  are  the  principles  on  which  was  based  the  award  of  the  Geneva  arbitral 
tribunal  in  the  celebrated  controversy  between  Great  Britain  and  the  United 
States  arising  out  of  the  Alabama  claims  during  the  Civil  War. 

612.  In  order  to  concede  or  deny  the  responsibility  of  the  state 
for  acts  of  private  persons,  it  is  necessary  to  adduce  or  disprove 
evidence  of  fault  on  the  part  of  the  government. 

It  rests  with  the  claimant  to  establish  by  sufficient  evidence  the 
presumption  of  culpability  of  the  government,  so  as  to  charge  it 
with  responsibility  for  injuries  inflicted  l)y  others. 

It  is  the  right  of  the  government,  when  the  presumption  of 
culpability  on  its  part  has  been  raised,  to  furnish  complete  proof 
that  it  has  acted  promptly  and  done  all  it  possibly  could  to  pro- 
hibit and  prevent  the  injurious  act  or  arrest  its  effects. 

It  would  surely  not  be  sufficient  to  assert  that  the  government  should  be 
presumed  to  be  culpable;  it  would  ])0.  necessary  to  prove  that  it  was  bound  to 
take  precautions  to  prevent  the  injurious  act,  and  that  it  has  neglected  to  do 


288  INTERNATIONAL  LAW    CODIFIED 

SO.  The  burden  of  proof  must  rest  upon  the  claimant.  After  the  presump- 
tion of  fault  of  the  government  is  thus  established,  it  is  clear  that  it  can- 
not deny  its  responsibility,  except  by  proving  that  it  was  guilty  of  no  omission 
of  duty  implying  fault. 

613.  Whenever  the  responsibility  of  the  state  for  injuries  to 
foreign  states  or  to  foreigners  has  been  established,  and  the  obliga- 
tion of  reparation  for  the  injuries  has  been  admitted,  no  difference 
should  be  made  whether  the  injured  party  is  a  citizen  or  a  foreigner. 
Even  when  it  is  necessary  to  concede  the  application  of  the  prin- 
ciples of  equity  and  rules  of  public  administration  for  the  repara- 
tion of  the  injury,  these  principles  ought  to  be  applied  to  foreigners 
and  to  citizens  alike. 

614.  As  to  the  indemnities  due  for  damage  caused  during  ordi- 
nary or  civil  war,  the  rules  relating  to  the  exercise  of  the  rights  of 
war  should  be  applied,  in  so  far  as  they  modify  the  rules  previously 
estabhshed. 

615.  International  disputes  growing  out  of  the  responsibility  of 
the  state  for  the  reparation  of  injuries  to  property  suffered  by 
foreign  states  and  private  persons  must  be  submitted  to  inter- 
national commissions  of  inquiry  and  to  arbitral  courts. 


TITLE  XXII 

DUTIES  OF  HUMANITY 

616.  Every  civilized  state  must  always  act  in  conformity  with 
the  principles  of  moral  law  and  complj'^  with  the  duties  of  humanity. 

Every  state  should  refrain  from  actions  which  may  be  contrary 
to  the  well-being  of  other  states  or  might  injure  them.  It  should 
also  co-operate,  without  detriment  to  its  national  interests,  in  the 
promotion  of  general  prosperity. 

We  may  apply,  even  in  international  relations,  the  principle  formulated  by 
the  Roman  jurists:  Quod  tibi  iion  nocet,  alteri  vero  prodest,  non  est  denegandum. 

617.  No  state  may  compel  another  state  to  observe  the  duties  of 
humanity,  nor  may  a  state  consider  the  refusal  of  another  as  un- 
friendly and  hostile. 

Yet,  when  the  act  of  another  state  may  be  considered  as  con- 
trary to  the  principles  of  moral  law  or  to  those  of  humanity  and  of 
the  comitas  gentium,  and  inflicts  a  real  injury  upon  other  states,  it 
may  call  for  a  collective  remonstrance  for  the  protection  of  common 
interests. 

The  precept  honeste  vivere  commends  itself  to  states  as  well  as  to  all  persons 
wishing  to  act  in  conformity  with  the  principles  of  natural  justice.  This  precept 
requires  no  demonstration  and  no  power  of  dialectics  could  augment  its  clear- 
ness and  force. 

We  must  admit,  therefore,  that  the  performance  of  moral  duties  must  be 
left  to  the  unrestricted  appreciation  of  each  government.  We  believe,  how- 
over,  that  an  arbitrary  and  persi.stent  refusal  cannot  be  justified  in  any  case. 
Thus,  for  instance,  it  cannot  be  admitted  that  a  state  may  arbitrarily  refuse 
to  receive  a  scientific  mission  which  intends  to  study  a  contagious  disease, 
determining  its  cause,  development  and  propagation.  Such  unjustified  refusal 
may  be  a  serious  ground  for  complaints  by  otiier  states. 

618.  It  should  be  considcTcd  a  moral  duty  imposed  on  every 
civilized  state  to  do  everything  necessary  to  prevent  public  calam- 
ities. 

For  that  purpose,  states  should: 

(a)  Encourage   scientific   research   into   the   causes  of  certain 

289 


290  INTERNATIONAL  LAW  CODIFIED 

contagious  diseases,  pursued  with  the  object  of  preventing  their 
propagation; 

(6)  Co-operate  to  prevent  ,the  spread  of  epidemics,  by  imme- 
diately advising  foreign  governments  of  the  first  appearance  on 
their  territory  of  cases  of  contagious  disease  (plague,  cholera, 
etc.) ;  by  making  known  the  region  where  the  disease  has  appeared, 
its  gravity  and  the  measures  adopted  to  arrest  its  spreading; 

(c)  Prescribe  without  delay  the  sanitary  measures  designed  to 
prevent  the  spread  of  contagious  diseases; 

(d)  Promote  the  meeting  of  sanitary  conferences  and  encourage 
discussions  for  the  study  of  questions  of  pubUc  health  in  their 
relations  with  effective  international  co-operation; 

(e)  Co-operate  to  assist  foreigners  employed  in  industry,  in  case 
of  accident,  destitution  or  sickness,  and  to  send  them  to  their  own 
country  if  without  means  or  the  assistance  of  a  consul  of  their 
country. 

At  the  sanitary  conference  of  Vienna  of  August  1,  1874,  the  wish  was  ex- 
pressed that  a  permanent  international  commission  be  created  for  the  study  of 
contagious  diseases  and  the  prescription  of  measures  designed  to  prevent  them 
from  spreading. 

This  wish  was  reaUzed  in  the  convention  signed  at  Vienna,  March  19,  1897, 
in  which  the  necessary  measures  to  prevent  the  introduction  of  bubonic  plague 
in  Europe  were  established  by  the  following  countries:  Germany,  Austria- 
Hungary,  Belgium,  Spain,  United  States,  France,  Great  Britain,  Greece, 
Italy,  Luxemburg,  Montenegro,  the  Netherlands,  Persia,  Rumania,  Russia, 
Switzerland  and  Turkey. 

Finally,  on  December  13,  190.3,  with  a  view  to  preventing  the  spreading  of 
plague  and  cholera,  there  was  concluded  at  Paris  an  international  sanitary  con- 
vention between  Germany,  Austria-Hungary,  Belgium,  Brazil,  Egypt,  Spain, 
the  United  States,  France,  Great  Britain,  Greece,  Italy,  Luxemburg,  Monte- 
negro, the  Netherlands,  Persia,  Portugal,  Rumania,  Russia  and  Switzerland. 


TITLE  XXIII 
INTERNATIONAL  RIGHTS  AND  DUTIES  OF  MAN 


GENERAL    RULE 

619.  Whatever  his  race,  degree  of  culture  and  color  may  be, 
man,  so  long  as  he  lives  in  political  association,  even  if  he  has  a 
nomadic  existence,  does  not  lose  the  rights  of  human  personality 
which  are  his  according  to  international  law.  He  may  everywhere 
request  the  respect,  enjoyment  and  exercise  of  these  rights,  on 
condition  of  subjecting  himself  to  the  authority  of  territorial  laws 
and  of  observing  the  local  laws. 

Compare  rules  1-66  el  seq. 

INVIOLABILITY   OF   THE    PERSON 

620.  Every  one  is  entitled  to  personal  inviolability  as  a  man  and 
any  injury  to  his  person  and  his  lib^'ty  must  be  considered  con- 
trary to  international  law,  which  protects  man,  even  when  not  a 
member  of  a  political  body  organized  as  a  state. 

621.  The  liberty  of  man  nmst  be  respected  as  his  personal 
right,  independently  of  treaties,  and  must  be  protected  and  guar- 
anteed by  all  the  legal  and  judicial  measures  employed  in  behalf 
of  citizens. 

622.  The  right  of  personal  liberty  and  inviolability  cannot  be 
denied  to  any  man,  whatever  his  race  or  color. 

PERSONAL   RIGHTS   OF   NEGROES 

623.  Any  state  which  denies  to  negroes  the  rights  of  human 
personality  and  permits  them  to  be  bought  and  sold,  as  it  does 
proi)erty,  violates  international  liiw. 

624.  The  traffic  in  negroes,  undci   whatever  form  it  may  be 

291 


292  INTERNATIONAL  LAW   CODIFIED 

carried  on,  and  even  with  the  authorization  and  tolerance  of  the 
state  where  it  is  conducted,  must  be  considered  as  an  infringe- 
ment of  the  rights  of  human  personality  and  declared  absolutely 
unlawful  and  contrarj-  to  international  law. 

625.  Every   civilized   state  must  do  everything   necessary  to 

guarantee  the  personal  inviolability  of  negroes,  use  all  the  means 

at  its  disposal  to  put  an  end  to  the  shameful  traffic  in  them  and 

punish  those  who  carry  it  on  or  take  part  in  it  either  directly  or 

indirectly. 

The  Italian  law  severely  punishes  the  slave  trade  by  penalties  providing  for 
the  punishment  of  maritime  offenses  in  Chapter  V  of  the  Merchant  JMarine 
Code.  Article  337  provides  that  the  offense  of  slave  trading  shall  be  considered 
as  committed  whenever  a  slave  shaU  be  treated  as  such  on  board  a  national 
vessel.  The  Code  also  provides  for  the  punishment  of  attempts  at  slave  trad- 
ing, which  is  considered  as  accomplished  when  a  vessel  fitted  out  for  the  trans- 
port of  slaves  has  been  caught  before  the  act  of  slave  trading  has  taken  place. 
(Arts.  340-341.) 

626.  Any  slave,  although  bought  where  the  slave  trade  is  de- 
clared lawful,  must  be  considered  free  and  inviolable  in  his  person 
as  soon  as  he  enters  the  territory  of  a  civilized  state,  which  is 
bound  to  protect  his  liberty  and  the  inviolability  of  his  person. 

This  rule  was  sanctioned  in  the  anti-slave  Act  of  July  2,  1890,  article  7  of 
which  reads  as  follows:  "Every  fugitive  slave  who,  or  the  continent,  claims  the 
protection  of  the  signatory  Powers,  must  receive  it  and  shall  be  received  in  the 
camps  and  stations  officially  established  bj'  the  Powers  or  on  board  pubhc 
vessels  navigating  in  the  lakes  and  rivers.  Stations  and  private  vessels  can 
exercise  the  right  of  asylimi  only  with  the  prior  consent  of  the  state." 

627.  All  civilized  states  should  adopt  the  measures  necessary  to 
put  an  end  to  the  slave  trade  in  the  regions  where  it  still  exists, 
considering  as  unlawful  not  only  the  traffic  itself,  but  also  all 
operations  on  land  and  sea  designed  to  maintain  and  exercise  it. 

They  must,  moreover,  use  all  their  influence  to  compel  bar- 
barian sovereigns  and  uncivilized  peoples  who  permit  the  slave 
trade,  to  put  an  end  to  it. 

This  rule  is  sanctioned  by  article  9  of  the  treaty  of  Berlin  of  Feb- 
ruary 26,  1885,  and  forms  the  "common"  law  of  the  following  states:  Austria- 
Hungary,  Belgium,  Denmark,  France,  Germany,  Great  Britain,  Italy,  the 
Netherlands,  Luxemburg,  Norway,  Portugal,  Russia,  Spain,  the  United  States, 
Sweden,  and  Turkey.  These  countries  have  adopted  the  following  declara- 
tion relating  to  the  slave  trade:  "Article  9:  In  conformity  with  the  prin- 
ciples of  the  law  of  nations  as  recognized  by  the  signatory  Powers,  the  slave 
trade  as  well  as  all  incidental  operations  on  land  and  sea  being  prohibited,  the 
Powers  which  now  or  hereafter  exercise  rights  of  sovereignty  or  influence  in 


INTERNATIONAL    RIGHTS    AND    DUTIES    OF   MAN  293 

the  territories  forming  the  conventional  Congo  basin  declare  that  these  terri- 
tories shall  not  serve  either  as  a  market  or  as  a  channel  of  transit  for  the  trade 
in  slaves  of  any  race.  Each  of  the  Powers  undertakes  to  employ  all  the  means 
within  its  power  to  put  an  end  to  the  trade  and  punish  those  who  engage  in  it.' 

628.  The  rules  adopted  in  the  General  Act  signed  at  Brussels 
on  July  2,  1890,  for  the  suppression  of  the  slave  trade  must  be 
considered  as  the  expression  of  the  principles  demanded  by  civili- 
zation to  protect  the  individual  liberty  and  inviolability  of  the 
human  person  and  must  be  deemed  binding  on  all  civilized  states. 

The  general  anti-slave  act,  concluded  at  Brussels  July  2, 1890,  was  signed  by 
Austria-Hungary,  Belgium,  Congo,  Denmark,  France,  Germany,  Great  Brit- 
ain, Italy,  the  Netherlands,  Persia,  Portugal,  Russia,  Spain,  the  United  States, 
Sweden  and  Norway,  Turkey  and  Zanzibar.  Under  this  treaty  the  signatory 
powers  adopted  the  most  effective  means  of  suppressing  the  slave  trade  in  the 
maritime  zones  where  it  still  existed.  Besides  the  means  designed  to  prevent 
the  transportation  of  slaves,  e.  g.,  the  reciprocal  right  of  surveillance,  search 
and  seizure  of  the  ships  engaged  in  transporting  slaves  (art.  22),  the  signatory 
powers  authorized  more  efficient  means  of  suppressing  the  slave  trade  in  the 
places  of  origin  in  the  interior  of  Africa  (art.  1)  and  watching  convoys  along 
the  land  roads  used  by  slave  dealers  (arts.  15  and  19).  They  prescribed  in  like 
manner  the  best  means  of  protecting  hberated  slaves  and  founded  places  of 
refuge  for  the  purpose  of  encouraging  the  liberation  of  slaves  (art.  86). 


INVIOLABILITY    OF    PROPERTY 

629.  Private  property  must  be  considered  inviolate  under  inter- 
national law,  no  matter  what  form  it  may  assume. 

630.  Every  man  may  employ  his  faculties  with  regard  to  prop- 
erty, wherever  located,  and  acquire  it  under  the  conditions  estab- 
lished and  determined  by  the  lex  rei  sitcB. 

631.  Literary,  artistic  and  industrial  property  should  likewise 

be  considered  inviolate. 

We  do  not  admit  that  the  fruits  of  the  intellect  should  be  considered  as 
property.  We  do  not  find  therein  the  requisites  and  characteristics  of  things 
constituting  the  object  of  property.  However,  this  is  not  the  place  to  expound 
our  views,  and  we  shall  merely  say  that  we  have  adopted  the  usual  terminology, 
without  undertaking  to  guarantee  its  accuracy. 

632.  The  right  of  the  author  of  a  product  of  the  intellect  to 
obtain  the  legal  protection  of  his  right,  whatever  it  may  be,  under 
the  conditions  determined  by  law,  must  be  considered  as  founded 
on  the  respect  due  to  the  international  rights  of  man  in  the  noblest 
manifestations  of  his  activity.  While  an  international  right  of 
man  apart  from  treaty,  it  is  incumbent  on  states  to  assure  legal 


294  INTERNATIONAL   LAW   CODIFIED 

]irotection  for  the  rights  in  literary  and  artistic  property  by  means 
of  treaties. 

The  foregoing  rules  seek  to  respect  the  right  of  an  author  over  his  production 
and  the  inviolabiUty  of  such  right  from  a  legal  point  of  view.  It  cannot  be 
considered  as  a  gracious  concession  of  a  prince,  nor  as  a  privilege  based  on 
treaties,  nor  as  a  privilege  assured  exclusively  to  citizens.  It  is  the  most 
sacred  right  of  the  human  personalit}',  because  it  is  the  fruit  of  personal  ac- 
tivity which  has  manifested  itself  and  been  developed  through  work.  It  must; 
therefore,  be  considered  as  a  right  of  man  and  as  such  have  the  character  of  an 
international  right  for  the  good  reason  that  the  rights  of  the  human  personality 
cannot  be  restricted  within  the  territorial  limits  of  any  one  country. 

633.  Save  for  the  right  of  every  state  to  subject  the  protection 
of  literary,  artistic  and  industrial  property  to  certain  legal  condi- 
tions previously  determined,  it  must  be  conceded  that  a  failure 
to  assure  equal  treatment  to  foreigners  and  citizens  is  a  violation 
of  international  law  on  the  part  of  the  state. 

634.  It  is  contrary  to  modern  international  law  for  a  state  to 
forbid  to  foreigners  the  acquisition  of  real  or  personal  property 
under  the  same  legal  conditions  as  citizens,  or  to  deny  to  foreigners 
the  enjoyment  of  the  private  rights  embraced  in  the  right  of  prop- 
erty. The  state  may  reserve  to  citizens  exclusively,  on  grounds  of 
public  policy  or  social  welfare,  certain  rights  relating  to  particular 
matters.  The  state  may  also  grant  the  enjoyment  of  certain  rights 
connected  with  real  property  to  citizens  alone,  by  reason  of  the 
special  nature  of  the  rights  and  their  connection  with  public  law 
and  public  polic}'. 

635.  Yet  when  by  the  laws  of  a  country  foreigners  or  foreign 
states  are  prohibited  from  acquiring  real  property  by  inheritance, 
provided  the  right  to  inherit  is  recognized,  the  territorial  state 
cannot  confiscate  decedent's  estates  to  its  own  profit;  it  can  only 
compel  the  heir  or  successor  to  the  estate  to  alienate  the  property, 
with  the  right  to  receive  and  take  away  the  purchase  price. 

This  rule  was  developed  at  greater  length  in  our  legal  opinion  on  the  Zappa 
succession  in  Rumania.  Under  the  legislation  of  that  country,  foreigners  being 
forbidden  to  acquire  the  real  property  bequeathed  by  the  deceased  to  Greece 
the  question  arose  as  to  whether  Rumania  could  confiscate  the  property. 

See  Fiore,  Successione  Zappa,  Conlroversia  tra  la  Grecia  e  la  Romania.  As 
regards  legacies  to  the  Pope  and  to  the  Church,  see  rule  712. 

636.  Private  property,  whoever  its  owner,  must  be  held  invio- 
late, even  on  the  high  seas  in  time  of  war,  save  when  the  rights  of 
ownership  are  subject  to  just  limitations  under  rules  of  inter- 


INTERNATIONAL  RIGHTS   AND   DUTIES   OF  MAN  295 

national  law  governing  the  rights  of  belligerents  and  private  per- 
sons in  time  of  war. 

637.  Civilized  states  must  consider  as  reciprocally  binding  upon 
each  other  all  legal  rules  designed  for  the  protection  of  property 
in  all  its  forms. 

RIGHT  OF  FREE  MIGRATION 

638.  Everyone,  whether  a  citizen  of  a  state  or  belonging  to  an 
unciviUzed  tribe  or  living  a  nomadic  existence,  has  the  right  freely 
to  enter  the  territory  of  any  state  open  to  trade,  observing  the  laws 
of  police  and  public  security  applicable  to  foreigners,  and  he  may 
sojourn  there,  provided  he  complies  with  the  local  laws. 

This  rule  seeks  to  do  away  with  the  necessity  of  the  passport  imposed  upon 
foreigners  desiring  to  enter  the  territory  of  a  state.  The  passport  may  always 
be  useful  in  ascertaining  the  nationality  of  the  holder  and  furnishing  prima 
facie  evidence  thereof.  But  it  cannot  be  maintained  that  the  right  to  enter  a 
state  is  based  on  the  passport,  and  that  the  absence  of  that  document  consti- 
tutes sufficient  grounds  to  deny  admission  to  a  state  open  to  trade. 

639.  No  state  professing  to  respect  the  principles  of  modern 
international  law  may,  through  exaggerated  measures  of  precau- 
tion, hinder  or  impede  the  entrance  of  foreigners  into  its  territory, 
nor  oppose  their  sojourning  without  reasonable  grounds  based  on 
public  order  or  policy. 

Compare  rules  261  et  seq. 

640.  A  state  always  has  the  right  to  regulate  by  special  laws  the 
entrance  of  foreigners  into  its  territory  and  to  determine  the  neces- 
sary conditions  for  the  practice  of  professions,  arts  and  trades,  in 
harmony  with  the  social,  economic  and  political  interests  of  the 
country. 

641.  A  foreigner  who  has  entered  a  state  may  depart  without 
previous  authorization  of  the  government  unless,  under  the  terri- 
torial laws,  he  must  be  considered  as  temporarily  deprived  of  his 
personal  liberty. 

642.  Every  foreigner,  independently  of  treaties,  must  be  pro- 
tected by  the  laws  of  the  state  where  he  resides  in  the  enjoyment 
and  exercise  of  his  civil  rights;  he  must  be  allowed  to  undertake 
civil  ^ts,  without  being  considered,  as  a  foreigner,  outside  the 
pale  of  "common"  law. 


296  INTERNATIONAL  LAW   CODIFIED 

RIGHT   TO    EMIGRATE 

643.  The  right  to  emigrate  is  one  of  the  personal  rights  of  man, 
and  must  be  considered  as  a  development  of  individual  freedom. 

No  state  may  prevent  its  citizens  freely  and  without  obstacle 
to  leave  its  territory  to  go  abroad  in  order  to  develop  their  activity 
with  the  hope  of  larger  rewards.  The  emigrant  may,  however,  be 
required  to  have  fulfilled  his  military  obligations  for  the  period  le- 
gally imposed  upon  all  citizens. 

644.  Emigration  does  not  break  the  bond  between  the  emigrant 
and  his  native  country.  Nevertheless,  the  emigrant  is  bound  to 
obey  the  laws  of  the  state  where  he  resides,  even  as  regards  the 
exercise  of  rights  accorded  him  by  the  laws  of  his  native  country. 

645.  The  government  of  the  state  of  which  the  emigrant  is  a 
citizen  may  use  any  lawful  means  to  maintain  the  bond  which 
connects  him  with  his  country,  by  encouraging  the  preservation 
of  his  national  sentiments,  promoting  his  attachment  to  the  insti- 
tutions of  his  native  country  and  protecting  him  against  vexatious 
measures  of  local  governments. 

It  must  be  observed,  however,  that  in  principle  this  must  be 
done  without  violating  or  disregarding  the  rights  of  the  territorial 
state  and  without  effecting  a  sort  of  disguised  invasion  or  inter- 
vention. 

A  well-organized  emigration  may  become  an  important  factor  of  the  eco- 
nomic and  commercial  prosperity  of  states  and  an  efficient  instrument  of  the 
civilization  of  barbarian  nations.  Instead  of  opposing  it,  therefore,  states 
should  encourage  emigration  by  considering  it  as  a  measure  well  adapted  to 
meet  the  pressing  necessity  of  individuals  to  earn  a  livelihood  through  profita- 
ble labor,  and  to  bring  about  a  more  equitable  relation  between  the  lands  of 
the  earth  and  the  men  who  must  people  and  work  it.  Emigration  may  ad- 
mirably contribute  to  the  spread  of  civilization,  by  permitting  barbarian  peo- 
ples peacefully  to  benefit  by  the  more  advanced  culture  and  energy  of  more 
industrious  workers  and  more  enlightened  commerce,  so  as  gradually  to  attain 
the  same  level  of  culture  and  civilization. 

646.  It  is  the  duty  of  the  territorial  state  to  regulate  immigra- 
tion by  Hmiting  it,  according  to  circumstances,  in  order  to  prevent 
the  moral  and  economic  disturbances  likely  to  arise  from  an  ex- 
cessive immigration  and  by  reconciling  the  practice  of  professions, 
arts  and  trades  on  the  part  of  immigrants  with  the  moral  and  eco- 
nomic interests  of  citizens  and  the  political  interests  of  the  state. 

647.  It  is  incumbent  on  the  states  of  which  the  emigrants  are 


INTERNATIONAL   RIGHTS    AND    DUTIES    OF    MAN  297 

citizens,  to  protect  them  against  the  traps  of  speculators  and  emi- 
gration agencies  and  to  prevent  emigration  from  being  fomented 
by  fallacious  promises  of  exaggerated  profit. 
To  that  end  it  should: 

a.  Regulate  emigration  by  special  laws; 

b.  Subject  agencies  to  the  authorization  of  the  government  and 

supervise  the  operations  of  securing  employment,  embar- 
cation  and  transportation  effected  by  them; 

c.  Subject  to  legislative  rules  the  relations  of  emigration  agents 

to  emigrants; 

d.  Take  into  consideration  the  claims  of  emigrants  and  compel, 
by  criminal  penalties,  the  observance  of  the  obligations 
imposed  on  emigration  agents; 

e.  Do  everything  that  may  be  required  to  modify  the  political 

or  social  conditions  which  may  influence  emigration. 

FREEDOM   OF   NAVIGATION   AND    COMMERCE 

648.  Everyone  has  the  right  to  navigate  freely  on  the  high  seas 
and  in  the  waters  included  within  the  territorial  domain  of  any 
state,  on  condition  of  observing  the  rules  governing  navigation; 
he  may  invoke  the  application  of  the  international  laws  which 
protect  persons  and  property  engaged  in  navigation. 

See  Book  III  for  the  rules  of  navigation. 

649.  Anyone  may  enter  territorial  waters  and  invoke  the  pro- 
tection of  international  law  in  so  far  as  it  governs  the  peaceful  use 
of  such  waters,  on  condition  of  complying  with  the  laws  and  regu- 
lations of  the  territorial  state. 

He  may  freely  use  all  means  of  communication  for  the  free 
exercise  of  his  activities,  provided  he  observes  the  local  laws  and 
regulations. 

The  purpose  of  this  rule  is  to  establish  the  fact  that  the  right  of  navigation 
over  the  territorial  waters  of  a  state  must  not  be  considered  as  based  on  trea- 
ties and  reserved  only  for  the  citizens  of  states  which  have  concluded  treaties. 
No  sovereign  who  does  not  wish  to  violate  the  princii)les  of  international  law, 
may  arbitrarily  deny  the  peaceful  use  of  channels  of  conununication  by  land 
and  sea  to  an  individual  who  is  not  a  citizen  of  a  state  with  whi(!h  there  exists 
a  treaty  granting  such  right  under  reciprocity.  We  believe,  therefore,  that  the 
peaceful  use  of  means  of  communication  must  be  considered  as  an  inherent 
right  of  man,  whenever  the;  individual  who  seeks  to  avail  himself  of  it  complies 
with  the  territorial  laws  g(jverning  the  subject. 


298  INTERNATIONAL   LAW    CODIFIED 

RIGHT   OF   FREEDOM    OF   CONSCIENCE 

650.  Freedom  of  religious  worship  must  be  protected  by  inter- 
national law  and  considered  as  one  of  the  international  rights  of 
man. 

Everyone  may  retain  or  change  his  religious  faith  with  complete 
freedom  and  does  not  have  to  account  to  anyone  for  his  decision 
nor  for  his  refusal  to  join  anj^  particular  faith. 

651.  Everyone  is  entitled  freely  to  practise  his  religion,  pro- 
vided that  it  is  not  prohibited  by  the  territorial  law,  or  does  not 
happen  to  be  subsequently  prohibited  for  reasons  of  public  policy 
or  order. 

652.  Religious  persecution  should  be  considered  as  an  infringe- 
ment of  the  right  of  freedom  of  conscience  and  should  be  deemed 
a  grave  violation  of  international  law  on  the  part  of  the  state,  if 
it  has  authorized  it  and  has  failed  to  do  everything  in  its  power  to 
prevent  it. 

653.  It  should  be  considered  as  a  grave  infringement  of  modern 
international  law  to  condition  the  enjoyment  of  civil  rights  upon 
religious  faith,  or  to  bring  into  play  any  kind  of  influence  whatso- 
ever to  compel  foreigners  to  change  their  religious  faith  and  es- 
pecially to  expose  them  to  persecution  or  annoyance  for  refusing 
to  change  it. 

In  like  manner,  it  must  be  held  unlawful  to  subject  foreigners 
to  examinations  and  inquisitorial  measures  in  order  to  ascertain 
their  religious  faith. 

RIGHT   OF   CITIZENSHIP 

654.  Every  person  legally  capable  of  exercising  civil  rights 
may  freely  choose  the  state  to  which  he  wishes  to  belong  and 
when  he  has  fulfilled  all  the  conditions  fixed  by  the  legislature,  he 
may  demand  recognition  of  his  citizenship  and  the  enjoyment  of 
all  the  rights  and  privileges  granted  by  law  to  citizens. 

655.  The  title  of  citizen  may  be  given  to  any  person  who,  while 
not  legally  capable  of  choosing  the  state  to  which  he  wishes  to 
belong,  nevertheless  fulfils  the  conditions  fixed  by  law  to  be  deemed 
a  citizen. 

The  legislatures  of  the  different  countries  assign  the  title  of  citizen  to  persons 
who  are  not  capable  of  expressing  their  own  will,  by  taking  into  account  their 


4 


^' 


INTERNATIONAL   RIGHTS   AND    DUTIES   OF   MAN  299 

natural  tendencies  predetermined  by  blood  ties  and  family  relations.  It  is 
justh'  presumed  that  the  child  should  desire  to  follow  the  legal  status  of  his 
father.  Accordingly,  the  laws  provide  that  the  child  acquires  at  his  birth  the 
citizenship  of  the  father  and  preserves  it,  first  during  his  minority  and  then 
after  his  majority  so  long  as  he  does  not  manifest  his  desire  to  acquire  another 
citizenship. 

656.  Every  state  may  determine  the  persons  who  are  to  be 
considered  citizens  and  foreigners,  and  the  rules  for  the  determina- 
tion of  these  matters  must  be  considered  within  the  sphere  of  the 
state's  autonomy  and  independence. 

657.  We  must  admit  the  anomalous  condition  by  which  under 
the  municipal  law  of  two  different  states  an  individual  may  be 
deemed  a  citizen  of  both  states,  thus  possessing  dual  citizenship. 

It  often  happens  that,  in  consequence  of  the  legislative  autonomy  of  every 
state,  a  person  is  endowed  with  dual  citizenship.  According  to  article  8  of 
the  French  Civil  Code,  as  amended  by  the  law  of  July  22,  1893,  any  person 
born  in  France  of  foreign  parents  one  of  whom  was  born  in  France,  is  consid- 
ered French,  provided  he  does  not  renounce  his  French  citizenship  within  a 
year  of  his  majority,  determined  in  conformity  with  French  law.  On  the 
other  hand,  according  to  article  4  of  the  Italian  Civil  Code,  a  child  born  in 
France  of  an  Italian  father  is  deemed  an  Italian,  although  he  meets  the  con- 
ditions provided  for  in  article  8  of  the  French  Civil  Code.  It  remains  to  be 
said  that  national  courts  must  decide  questions  of  citizenship  in  accordance 
with  national  law,  disregarding  the  fact  that  the  same  person  possesses  also 
a  dual  nationality. 

The  same  thing  happens  under  laws  granting  citizenship  to  persons  born 
within  the  state  of  foreign  parents.  This  is  the  case  in  the  Argentine  Republic 
by  the  law  of  October  1,  18G9;  in  Bolivia,  according  to  the  constitution  of 
February  1.5,  1878;  in  Ecuador,  according  to  the  constitution  of  August  11, 
1869;  in  Guatemala,  under  the  constitution  of  1851,  revised  in  1859; 
in  Mexico,  in  conformity  with  articles  1  and  2  of  the  law  of  May  28, 
1886;  as  well  as  in  a  great  many  other  countries.  Now,  under  article  4  of  the 
Italian  Civil  Code,  children  born  in  those  countries  of  Italian  fathers,  are  de- 
clared to  be  Italian,  so  that  the  fact  that  they  are  citizens  of  two  states 
is  the  unavoidable  consequence  of  the  conflict  of  municipal  legislation  relating 
to  citizenship.  This  anomalous  condition  fortifies  the  opinion  of  jurists  who 
demand  an  international  agreement  to  prevent  the.se  inconveniences.  [See 
Lciong's  case  and  the  views  of  the  Department  of  State  on  dual  nationality 
in  July,  1915,  Supplement  to  American  Journal  of  International  Law,  pp.  369- 
375.  See  also  Borchard,  Diplomatic  protection  of  citizens  abroad  (New  York, 
1915),  §§2.53-261.— Transl.] 

Compare:  Court  of  Cassation  of  Florence,  February  3,  1875,  Vincentini  case. 
(Betlini,  XXXI,  I,  1,  429.) 

CHANGE   OF   CITIZENSHIP 

658.  Any  person  legally  competent  under  his  national  law  may 
renounce  the  citizensliip  of  that  country  to  acquire  another.    This 


300  International  law  codified 

is  one  of  the  personal  rights  of  man,  which  cannot  be  conditioned 
upon  the  previous  authorization  of  the  state  of  which  he  is  ac- 
tually a  citizen. 

659.  The  loss  of  nationality  of  origin  may  be  effected  by  express 
or  tacit  renunciation;  it  cannot,  however,  become  effective  until 
a  new  citizenship  in  another  state  has  been  acquired. 

660.  Express  or  tacit  renunciation  is  valid  when  it  takes  place 
in  accordance  with  the  forms  determined  by  law. 

Tacit  renunciation  of  the  nationality  of  origin  may  be  accom- 
plished by  voluntarily  doing  something  which,  under  the  national 
law  of  a  person,  is  incompatible  with  the  retention  of  citizenship. 

Citizenship  must  be  considered  as  a  great  benefit  to  the  person  who  possesses 
it.  Consequently,  it  must  be  presumed  that  every  one,  so  long  as  he  has  not 
renounced  it,  desires  to  retain  his  citizenship. 

In  order  to  admit  tacit  renunciation,  two  conditions  are  required:  1st,  that 
the  act  from  which  the  inference  is  drawn  shall  have  been  voluntary;  2d,  that 
the  act  be  expressly  indicated  in  the  law  as  sufficient  in  itself  to  cause  a  loss 
of  citizenship.  This  is  the  only  way  in  which  the  respect  of  the  right  of  free 
attachment  to  the  state,  one  of  the  personal  rights  of  man,  may  be  assured. 

UNLAWFUL    CHANGE   OF   CITIZENSHIP 

661.  Renunciation  of  citizenship  should  not  be  considered  as 
valid,  if  effected  fraudulently  and  in  bad  faith.  This  would  be 
the  case  if  citizenship  is  renounced  merely  with  a  view  to  escape 
the  authority  and  penalty  of  the  law  in  order  to  accomplish  a  pro- 
hibited act  or  to  violate  a  right  acquired  by  a  third  person  ac- 
cording to  his  national  law. 

662.  Renunciation  of  citizenship  may  likewise  be  considered  to 
have  been  effected  in  bad  faith,  when  it  appears  from  the  circum- 
stances that  the  person,  without  any  permanent  intention  of 
abandoning  his  native  country,  actually  and  finally,  has  tempo- 
rarily changed  his  personal  statute  for  the  sole  purpose  of  thus 
exercising  certain  rights  which  his  national  law  denies  him.  This 
intention  may  be  inferred  from  the  fact  that  he  has  maintained 
the  bonds  which  connected  him  with  his  country,  by  manifesting 
his  intention  to  reacquire  anew  his  renounced  citizenship. 

In  order  properly  to  explain  the  idea  developed  in  the  foregoing  rules,  we 
must  recall  that  in  admitting  the  right  of  every  one  to  select  freely  the  state 
of  his  choice,  we  stated  that  it  cannot  be  considered  a  fraud  on  the  law  to  change 
citizenship  in  order  to  acquire  the  enjoyment  of  rights  more  extensive  than 
those  granted  by  the  law  of  his  country. 

This  being  his  personal  right,  it  cannot  be  said  that  a  person  exercises  that 


r 


INTERNATIONAL   RIGHTS   AND   DUTIES  OF  MAN  301 

right  in  bad  faith  and  unlawfully  when  by  so  doing  he  has  defeated  the  expec- 
tations of  others:  qui  suo  jure  utitur  neinini  injuriam  facit.  This  would  be 
the  case,  for  example,  of  a  person  who,  in  order  to  dispose  more  freely  of  his 
property,  renounces  his  present  citizenship  so  as  to  have  greater  Uberty  to 
bequeath  by  will.  Such  action  could  not  be  said  to  be  fraudulent  because 
the  expectations  of  his  legal  successors  may  have  been  defeated. 

Since  the  right  to  succeed  becomes  effective  at  the  time  of  death  only,  the 
order  and  measure  of  rights  of  succession  can  be  determined  under  the  law  in 
force  only  at  the  time  of  the  decedent's  death.  Considering  that  the  right  to 
change  citizenship  is  essentially  personal,  one  cannot  allege  the  invalidity  of 
the  new  citizenship  legally  acquired,  on  the  ground  of  the  possible  injury  to 
the  heirs,  for  the  latter  cannot  profit  by  any  right  of  succession  during  the  life 
of  the  decedent;  for  expectations  never  constitute  vested  rights. 

Invalidity  because  of  fraud  upon  the  law  can  be  asserted  in  the  case  of  a 
person,  incompetent  to  change  his  citizenship  and  to  avoid  the  effect  of  the  law 
which  governs  the  exercise  of  his  rights,  who  seeks  to  acquire  the  citizenship 
of  another  state  in  order  to  exercise  rights  denied  to  him  by  the  law  of  his 
country;  or  when  a  person  changes  his  citizenship  to  avoid  the  obligation  of 
respecting  rights  acquired  by  third  persons  under  the  law.  (This  would  be 
the  case  of  a  husband  who,  in  order  to  deprive  his  wife  of  the  right  to  demand 
the  return  of  her  dowry,  becomes  naturalized  in  a  country  where  this  right  is 
not  admitted  against  the  husband). 

The  same  thing  may  be  said  where,  under  the  circumstances,  citizenship 
could  not  be  considered  as  real  and  effective,  but  as  essentially  void  by  reason 
of  the  fact  that  its  main  object  is  to  withdraw  the  person  acquiring  it  from  the 
authority  of  his  national  law;  as,  for  example,  when  an  Italian,  in  order  to 
escape  the  authority  of  the  Italian  law  forbidding  divorce  becomes  naturalized 
■pro  forma  in  a  foreign  country  so  as  to  secure  a  divorce  with  the  intention  of 
subsequently  recovering  his  Italian  citizenship  in  order  to  marry  another 
woman  in  Italy.  Owing  to  the  fact  that,  while  he  renounces  his  Italian  citizen- 
ship, he  still  retains  Italy  as  the  main  center  of  his  affairs  and  interests,  and 
that,  aU  things  considered,  it  appears  that  his  renunciation  of  Italian  citizen- 
ship was  neither  genuine  or  real,  but  was  effected  merely  with  a  view  to  avoid 
the  imperative  commands  of  his  national  law,  the  fraud  upon  the  law  is  clear. 

663.  It  cannot  be  considered  fraudulent  to  renounce  one's  citi- 
zenship in  order  to  change  one's  personal  statute  so  as  to  acquire 
more  extended  rights,  even  though  this  renunciation  may  be 
prejudicial  to  the  expectations  of  third  parties. 

664.  Change  of  citizenship  can  have  no  retroactive  effects. 
Therefore,  the  acquisition  of  foreign  citizenship  can  never  relieve 
a  person  from  fulfilling  obligations  imposed  on  citizens,  such  as 
the  civil  obligations  incurred  before  the  loss  of  citizenship,  military 
service,  and  the  respect  of  the  rights  acquired  by  third  parties,  etc. 

NECESSITY   OF   A    COMMON    LAW    RELATING   TO    CITIZENSHIP 

665.  It  is  incuiiibciit  on  states,  in  order  to  avoid  difrKUiltics  due 
to  questions  of  citizenship  and  to  prevent  the  multiplicity  or  ab- 


302  INTERNATIONA.L  LAW   CODIFIED 

sence  of  such  citizenship,  to  adopt  in  common  accord  uniform 
fundamental  rules  designed  to  reconcile  both  their  legislative 
autonomy  and  the  individual's  liberty  to  choose  his  home  state, 
the  purpose  being  one  of  reciprocal  utility  in  determining  exactly 
the  citizenship  of  every  one  and  bringing  the  municipal  law  into 
harmony  with  the  fundamental  rules  which  ought  to  constitute 
the  "common"  law  of  civilized  states  in  the  matter  of  citizenship. 

666.  The  legislative  autonomy  of  the  sovereignty  of  every  state 
with  respect  to  citizenship  should  consist  in  fixing  the  conditions 
necessary  to  acquire,  renounce,  lo.se  and  reacquire  citizenship, 
without,  however,  violating  the  fundamental  rules  adopted  by 
common  agreement. 

It  is  well  to  note  that  citizenship  is  the  basis  of  pohtical,  private  and  inter- 
national rights,  for  political  rights,  public  and  civil,  which  under  municipal 
law  are  granted  to  citizens  only,  are  founded  on  citizenship.  Private  rights 
which  are  determined  by  the  personal  statute  also  depend  on  citizenship. 
The  same  is  true  of  international  rights,  which  according  to  treaties  are  ac- 
corded to  the  respective  citizens  of  the  contracting  parties.  It  thus  follows 
that  in  order  to  prevent  conflicts  which  may  arise  whenever  the  title  of  a 
certain  person  to  certain  rights  comes  into  question,  it  is  necessary  to  estabUsh 
beyond  controversy  the  exact  citizenship  of  the  person.  At  present,  since 
each  state  regulates  citizenship  by  virtue  of  its  own  legislative  autonomy, 
without  regard  to  the  laws  of  other  states,  it  may  happen  that  a  person  is  at 
the  same  time  a  citizen  of  two  states  or  of  none  at  all.  This  lack  of  legislative 
harmony  results  unavoidably  in  uncertainty  in  the  status  of  persons  and  their 
rights  and  in  unfortunate  conflicts  with  respect  to  the  powers  of  a  state  as 
regards  individuals  invested  with  the  legal  status  of  dual  nationahty. 

RATIONAL   RULES   ON   THE   ATTRIBUTES   OF   CITIZENSHIP 

667.  States  must  regulate  the  acquisition  and  loss  of  citizenship, 
admitting  as  a  principle  that  no  one  may  be  without  citizenship 
or  be  a  citizen  of  two  states  at  the  same  time. 

668.  The  imposition  of  citizenship  upon  individuals  without 
their  express  or  tacit  consent  must  be  considered  a  violation  of  the 
personal  right  of  man  freely  to  attach  himself  to  a  given  state. 

Illustrations  of  this  are: 

(a)  A  provision  to  the  effect  that  persons  born  in  the  territory 
of  the  state  of  foreign  parents  shall  not  have  any  other  citizenship. 

(6)  A  provision  declaring  as  citizens  persons  residing  in  the  state 
in  order  to  carry  on  their  trade,  although  they  manifest  no  inten- 
tion of  renouncing  their  citizenship  and  of  acquiring  that  of  the 
state  of  residence. 


INTERNATIONAL   RIGHTS   AND   DUTIES   OP  MAN  303 

(c)  The  grant  of  citizenship  in  the  state  to  an  individual  marry- 
ing a  native  woman. 

[This  is  the  law  of  Brazil.  See  Rodrigo  Octavio  in  6  Rev.  de  I'lnst.  de  Droit 
Comp.,  .307— Transl.] 

(d)  The  grant  of  citizenship  in  the  state,  the  presumption  of 
consent  being  based  on  silence  or  a  negative  act  when  nothing 
positive  has  been  done  implying  tacit  consent  to  acquire  citizen- 
ship. 

[On  imposition  of  citizenship  by  the  Constitution  of  Brazil  and  statutes  of 
other  Latin-American  countries  see  Borchard,  Diplomalic  protection  of  citizens 
abroad,  §  232 — Transl.] 

(e)  Any  other  form  of  imposing  citizenship  without  express 
manifestation  of  the  will  of  the  individual  to  that  effect,  or  without 
any  rational  presumption  of  consent  on  the  part  of  a  person  not 
in  a  position  to  manifest  it,  based  on  a  proper  interpretation  of 
the  natural  sentiments  of  the  individual. 

(/)  The  grant  of  collective  citizenship  to  all  the  inhabitants  of  a 
country  conquered  or  voluntarily  ceded,  without  properly  guaran- 
teeing them  liberty  of  election  to  retain  their  citizenship  or  making 
the  right  of  election  illusory  and  onerous. 

The  right  freely  to  become  a  member  of  a  state,  as  an  essentially  personal 
right  of  man,  must  be  respected  and  protected.  Therefore,  citizenship  cannot 
be  imposed  against  the  will  of  the  individual  and  a  change  of  nationality  must 
always  follow  a  free  manifestation  of  the  will.  Naturalization,  accordingly,  can 
only  be  recognized  when  it  is  requested  and  obtained  by  virtue  of  a  voluntary 
act  of  the  individual.  Imposed  citizenship  cannot  be  considered  as  an  acquired 
citizeaship.    Individual  initiative  is  always  required. 

669.  The  citizenship  of  the  father  shall  be  assigned  to  his  legit- 
imate child,  wherever  born,  the  child  retaining  that  citizenship 
unless,  having  full  capacity,  he  requests  and  obtains  citizenship  in 
another  state. 

670.  The  citizenship  of  an  illegitimate  child  follows  the  citizen- 
ship of  the  father,  if  the  latter  has  recognized  him,  or  that  of  the 
mother  if  she  alone  has  recognized  it,  provided  that  by  the  law 
the  father's  country  such  effect  follows  recognition. 

671.  An  individual  born  of  unknown  parents  within  the  territory 
of  a  .state  is  a  citizen  of  that  state. 

When,  how{!ver,  an  individual  registered  as  a  citizen  by  reason 
of  birth  of  unknown  parents  is  subsciquently  recognized  by  his 
foreign  father  or  by  both  a  father  and  a  mother  of  different  na- 


304  INTERNATIONAL  LAW  CODIFIED 

tionalities  he  shall  follow  his  father's  status.     If  recognized  by  the 
mother  alone  he  shall  follow  her  citizenship. 

[As  to  the  effect  of  illegitimacy  on  citizenship  in  U.  S.  see  Borchard,  Diplo- 
matic protection  of  citizens  abroad,  §  273 — Transl.] 

672.  A  woman  marrying  a  foreigner  loses  her  nationality  and  by 
reason  of  her  marriage  acquires  that  of  her  husband.  She  has  the 
right  to  retain  the  nationality  so  acquired  until  the  dissolution 
of  the  marriage,  and  cannot  acquire  another,  even  after  a  legal 
separation  from  her  husband. 

[See  MacKenzie  v.  Hare,  239  U.  S.  299— Transl.] 

673.  The  wife  and  minor  children  of  a  man  who  has  acquired  a 
foreign  nationality  and  thereby  lost  his  original  nationality  retain 
their  original  nationality. 

The  wife  shall  be  deemed  a  citizen  of  the  husband's  new  country 
only  when  she  has  freely  and  expressly  declared  her  desire  to  follow 
his  status.  The  minor  child  shall  retain  his  nationality  unless, 
having  become  of  age  under  the  laws  of  his  native  country,  he 
declares  (as  provided  by  that  law)  his  desu'e  to  follow  the  status 
of  his  father. 

[As  to  the  effect  of  naturalization  of  husband  and  father  on  a  married 
woman  and  minor  child  under  the  law  of  the  United  States,  see  Borchard, 
Diplomatic  protection  of  citizens  abroad,  §§  264,  272  and  cases  there  cited, 
—Transl.] 

674.  There  is  a  legal  presumption  that  every  person  retains 
his  nationality  of  origin  so  long  as  it  is  not  proved,  under  the  law 
of  his  country  of  origin,  that  he  has  voluntarily  lost  his  original 
citizenship  and,  under  the  law  of  the  foreign  country,  that  he  has 
duly  become  naturalized  as  a  citizen. 

The  reasons  upon  which  it  seems  to  us  the  foregoing  rules  are  founded  are 
developed  in  our  works,  namely:  Fiore,  Dintto  inter nazionale  privato,  4th  ed. 
(Turin,  Unione  Tip.-Editrice,  1902,  v.  1,  Leggi  civile,  Parte  speciale,  chap.  III.) 
See  also  the  French  translation  of  Ch.  Antoine  and  the  Spanish  translation 
of  Garcia  Moreno;  Fiore,  Suite  disposizioni  generali  delV applicazione  e  in- 
terpretazione  delle  leggi  (Naples,  Marghieri,  1890),  v.  II,  chap.  XI;  Delia  citta- 
dinanza  in  rapporto  alia  legge  personale. 

The  rules  concerning  minor  children  and  married  women  are  designed  to 
prevent  the  citizenship  acquired  by  them  by  reason  of  birth  or  marriage  from 
being  altered  by  the  will  of  the  husband  or  father  and  to  establish  the  principle 
that  the  status  civitatis  is  a  personal  right  of  every  one,  of  which  he  or  she  alone 
has  the  right  to  dispose,  provided  he  or  she  has  legal  capacity. 

On  questions  of  citizenship  under  the  Italian  civil  law,  see:  Fiore,  Diritto 


INTERNATIONAL   RIGHTS   AND    DUTIES    OF   MAN  305 

civile  ilaliano;  Delia  cotidizione  giuridica  delle  persone  (Naples,  Margliieri,  1889), 
title  I:  Delia  cittadinanza. 


NATURALIZATION   AND    ITS   EFFECTS 

675.  Naturalization  voluntarily  and  lawfully  obtained  should 
entail  ipso  jure  ipsoque  facto  the  loss  of  the  prior  citizenship  and 
the  acquisition  of  the  new.  A  change  of  the  personal  statute 
begins  from  the  time  naturalization  has  been  legally  perfected 
under  the  law  of  the  naturalizing  country. 

676.  The  change  of  personal  statute  can  have  no  retroactive 
effect;  hence  the  respective  authority  of  the  law  of  the  original 
and  of  the  new  country  should  be  determined  in  accordance  with 
the  principles  of  transitory  law. 

677.  A  concession  of  the  power  to  exercise  civil  rights  on  an 
equality  with  citizens  of  the  country,  granted  by  act  of  the  Exec- 
utive, is  not  the  equivalent  of  naturalization.  It  is  always  neces- 
sary, in  order  to  admit  a  change  of  the  personal  statute,  that  the 
foreigner  be  assimilated  to  the  citizen  with  respect  to  the  enjoy- 
ment of  civil  rights  and,  at  least  partially,  of  political  rights  ac- 
corded to  citizens. 

Under  the  laws  of  certain  countries  in  which  foreigners  are  not  treated  like 
citizens  with  respect  to  the  enjoyment  of  civil  rights,  these  rights  are  granted 
them  by  act  of  the  executive.  By  article  13  of  the  French  Civil  Code,  as 
amended  by  the  law  of  June  26,  1889,  the  enjoyment  of  civil  rights  is  granted 
to  the  foreigner  who  is  authorized  by  decree  to  establish  his  residence  in  France. 
Undoubtedly,  this  concession  does  not  produce  the  effects  of  naturalization. 
It  Is  a  temporary  one,  and  is  good  for  five  years  only,  after  which  time  it  be- 
comes void  if  the  foreigner  has  not  applied  for  and  obtained  his  naturalization. 
It  is  evident  that  the  decree  above  mentioned  cannot  produce  a  change  of 
personal  .statute,  for  the  foreigner  who  obtains  the  decree  in  his  favor  is,  during 
the  five  years,  in  the  .same  legal  position  as  in  Italy,  where,  by  virtue  of  article 
3  of  the  Civil  Code  the  foreigner  is  granted  the  enjoyment  of  civil  rights  on  the 
•same  terms  as  the  citizen.  So,  also,  in  England,  the  enjoyment  of  civil  rights 
or  of  some  of  them  only  (as,  for  instance,  the  right  to  acquire  real  estate,  to 
inherit  and  to  di.spose  of  property  by  will)  was  granted  by  act  of  denization, 
the  importance  of  which  has  decreased  greatly  since  the  law  of  1870,  when 
foreigners  were  grantcxl  the  exercise  and  enjoyment  of  property  rights.  The 
denizen,  according  to  the  English  law,  is  uncjuestionably  not  in  the  position  of 
a  person  who  has  obtained  his  naturalization  and  it  cannot  be  said,  therefore, 
that  his  personal  statute  is  changed.  The  .same  is  true  with  respect  to  other 
countries  where,  by  law,  the  foreigner  may  be  granted  the  iruiiginat  as  well 
as  the  enjoyment  of  certain  special  rights,  such,  for  instance,  as  that  of  casting 
a  vote  in  municipal  elections. 

Compare:  Fiore,  Dirillo  inlcrnazionale  privalo,  5th  ed.,  1903,  v.  I,  §§  379 el  seg. 


306  INTERNATIONAL   LAW   CODIFIED 

678.  Naturalization  may  result  from  the  voluntary  or  forced 
cession  of  a  part  of  the  territory  of  a  state  to  another  state  annex- 
ing it.     This  is  called  collective  naturalization. 

679.  Collective  naturalization,  like  individual  naturalization, 
may  become  operative  from  the  time  the  annexation  has  become 
effective  and  real,  and  from  the  time  the  conditions  stipulated  in 
the  treaty  of  cession  with  regard  to  the  retention  and  loss  of  origi- 
nal nationality  have  been  fulfilled. 

Even  in  case  of  collective  naturalization  by  reason  of  annexation,  we  must 
respect  the  right  of  the  individual  to  attach  himself  freely  either  to  the  annex- 
ing state  or  to  the  ceding  one,  and  of  persons  born  in  the  ceded  territory  not  to  be 
forced  against  their  express  or  tacit  desire,  to  change  their  nationality.  It  is, 
therefore,  essential  to  grant  the  inhabitants  of  the  ceded  territory  the  liberty 
of  electing  to  retain  their  original  nationality  by  fixing  a  reasonable  time  Umit 
for  exercising  the  right  of  election. 

Compare:  Fiore,  op.  cit.,  §§  382  el  seq. 

DOMICIL  IN   ITS   RELATION  TO   CITIZENSHIP 

680.  Domicil  cannot  be  considered  sufficient  in  itself  to  attribute 
citizenship  to  the  person  domiciled,  especially  when  the  require- 
ments of  business  have  caused  his  residence.  It  should,  however, 
be  considered  in  accord  with  reciprocal  interests  to  admit  in  prin- 
ciple that  one  who  establishes  his  civil  domicil  in  a  foreign  country 
without  expressly  declaring  that  he  wishes  to  reserve  his  rights  of 
citizenship  in  his  native  country,  should  at  the  end  of  a  certain 
period  (five  or  ten  years  at  least)  be  held  to  be  a  citizen  of  the 
state  of  his  residence. 

While  the  relations  arising  out  of  domicil  and  those  arising  from  nationality 
are  of  a  different  nature,  yet  since  the  actual  population  of  a  country  is  made 
up  of  all  the  persons  permanently  resident  and  having  there  the  centre  of  their 
business  and  interests  and  since,  therefore,  domicil  establishes  certain  bonds 
between  domiciled  residents  and  the  sovereign  of  the  state,  it  must  be  admitted 
that  when  this  condition  has  subsisted  sufficiently  long  to  warrant  the  pre- 
sumption of  a  desire  to  join  the  local  population  and  abandon  the  country 
of  origin  by  manifesting  an  intention  not  to  return,  these  circumstances  may 
be  equivalent  to  a  tacit  renunciation  of  native  citizenship  and  a  tacit  adoption 
of  the  citizenship  of  the  country  of  residence. 

[This  principle  has  not  been  adopted  by  Anglo-American  law,  although  the 
Department  of  State  has  adopted  rules  by  which  a  loss  of  American  protec- 
tion follows  long-continued  residence  abroad  under  certain  circumstances;  and 
by  the  Act  of  March  2,  1907,  in  the  case  of  naturalized  citizens,  residence  of 
two  years  in  the  native  country  or  of  five  years  in  any  other  country,  results 
in  a  presumption  of  loss  of  American  citizenship.  See  Borchard,  Diplomatic 
protection  of  citizens  abroad,  §§  326-330 — Transl.] 


INTERNATIONAL   KIGHTS   AND    DUTIES    OF   MAN  307 

Such  effect  should  not  be  attributed  to  commercial  domicil  established  for 
business  purposes,  but  it  would  be  reasonable  to  recognize  it  in  case  of  civil 
residence. 

See,  Fiore,  Dirillo  irUemazioivale  privalo,  2d  ed.,  1874,  Appendix,  p.  552, 
and  5th  ed.,  v.  I,  §  58. 

Under  the  law  of  the  German  Empire  of  June  1,  1870,  art.  21,  Germans 
leaving  the  Empire  and  residing  abroad  for  ten  years  without  interruption  lose 
their  citizenship.  [This  provision  has  been  repealed  by  the  German  law  of  July 
22,  1913— Transl.] 

This  principle  is  also  recognized  in  the  treaty  of  February  22,  1868,  between 
the  North  German  Union  and  the  United  States,  article  1  of  which  reads  as 
follows:  "Citizens  of  the  North  German  Confederation  who  become  natural- 
ized citizens  of  the  United  States  of  America  and  shall  have  resided  uninter- 
ruptedly within  the  United  States  five  years,  shall  be  held  by  the  North  German 
Confederation  to  be  American  citizens,  and  shall  be  treated  as  such. 

"Reciprocally,  citizens  of  the  United  States  of  America  who  become  natu- 
ralized citizens  of  the  North  German  Confederation,  and  shall  have  resided 
uninterruptedly  within  North  Germany  five  years,  shall  be  held  by  the  United 
States  to  be  North  German  citizens,  and  shall  be  treated  as  such.  The  dec- 
laration of  an  intention  to  become  a  citizen  of  the  one  or  the  other  country 
has  not  for  either  party  the  effect  of  naturalization.  .  .  ."[Malloy,  Treaties, 
etc.,  1910,  V.  II,  p.  1298.1 

681.  Domicil  and  even  long-continued  sojourn  in  a  country  with 
the  intention  of  remaining  may  be  deemed  sufficient  to  warrant 
considering  the  domiciled  person  as  a  citizen,  provided  he  belongs 
to  no  particular  state  and  is  in  the  position  of  a  man  without  a 
country  {Heimaihlos). 

The  civil  status  of  every  person  and  the  enjoyment  of  private  rights  must 
be  determined  in  accordance  with  the  law  of  the  country  to  which  he  belongs. 
International  law  must  eliminate  persons  without  a  country,  the  heimalhlosen. 
When  a  person  cannot  invoke  the  protection  of  his  national  law,  it  is  reasonable 
to  consider  him,  even  with  respect  to  his  civil  status,  as  governed  by  the  law 
of  the  state  of  domicil.  [In  Anglo-American  law,  the  law  of  the  domicil  and 
not  of  nationahty  controls  civil  status,  for  nearly  all  purposes — Transl. 1 


PROOF   OF   CITIZENSHIP 

682.  Whoever  claims  citizenship  in  a  state  must  prove  it  by 
the  law  of  that  state. 

683.  The  proof  of  citizenship  should  be  judged  by  the  courts  in 
accordance  with  the  rules  enacted  by  the  legislature  for  the  de- 
termination of  citizenship. 

684.  The  mere  fact  that  a  person  establishes  that  he  has  ac- 
(juired  citizenship  abroad  (cannot  be  sufficient  to  prove  the  loss 
of  his  original  nationality  before  the  courts  of  his  original  state; 


308  INTERNATIONAL   LAW    CODIFIED 

he  must  prove  that  the  loss  of  citizenship  was  effected  in  accordance 
with  the  laws  of  that  state. 

The  purpose  of  this  rule  is  to  eliminate  the  inconveniences  likely  to  arise 
when  a  person  who,  incapable  under  his  national  law  of  acquiring  foreign 
citizenship,  acquires  it  under  the  foreign  law  and  afterwards  claims  in  his 
country  of  origin  the  enjoyment  of  rights  granted  him  under  the  foreign  law. 
This  would  be  the  case  of  the  foreign  nationahty  acquired  by  a  married  woman 
during  marriage.  Such  an  acquisition  of  citizenship  undoubtedly  could  not  be 
considered  as  valid  to  effect  a  loss  of  the  previous  nationality  and  justify  in 
her  original  state  the  enjoyment  of  rights  under  the  law  of  the  state  of  which 
the  woman  may  have  become  a  citizen.  If  these  rights  should  be  claimed  be- 
fore the  courts  of  her  original  state,  they  could  not  consider  her  as  a  foreigner 
if  she  had  not,  according  to  the  law  of  that  state,  legally  acquired  foreign  cit- 
izenship. 

This  rule  should  apply  even  when  the  foreign  nationality  is  acquired  during 
a  judicial  separation,  which  does  not  dissolve  the  marriage  bonds. 


RIGHTS   OF   MAN   AS   A    CITIZEN 

685.  Any  person  who  under  the  law  of  a  state  is  considered  a 
citizen  has  the  right  to  reside  in  that  state  and  cannot  be  expelled, 

686.  It  should  be  deemed  contrary  to  the  general  interests  of 
the  international  society,  in  order  to  get  rid  of  native  offenders,  to 
sentence  them  to  exile,  banishment  or  deportation  to  a  foreign 
country. 

Banishment  or  exile  from  the  territory  of  a  state  and  from  its 
colonial  possessions  can  be  justified  only  in  case  of  political  offenses. 

Other  states  may  always  refuse  to  grant  asylum  to  exiles  and 
may  expel  them,  having  them  accompanied  to  the  frontier. 

687.  Every  citizen  of  a  state  is  entitled  to  recognition  as  such 
abroad,  where  he  may  demand  that  his  status  and  his  rights  by 
reason  of  his  nationality  be  recognized  and  respected,  unless  their 
exercise  is  contrary  to  the  local  laws  of  public  order.  He  may 
invoke  the  protection  of  his  home  state,  according  to  the  rules  of 
international  law,  in  case  of  a  harsh  or  arbitrary  violation  of  his 
rights. 

688.  It  should  be  considered  as  a  right  of  man  qua  citizen  to 
invoke  the  application  of  the  treaties  in  force  between  his  national 
state  and  foreign  states  in  all  matters  relating  to  the  carrying  on 
of  business  and  the  enjoyment  of  private  rights. 

689.  Any  man  who  can  prove  his  status  as  a  citizen,  may  de- 
mand that  the  law  of  his  state  be  recognized  in  foreign  countries 


INTERNATIONAL   RIGHTS    AND    DUTIES    OF   MAN  'M)\) 

to  establish  his  personal  statute  and  fainil.y  relations,  except  where, 
according  to  the  local  law,  the  enjo^onent  of  certain  rights  is  sub- 
ject to  the  application  of  the  law  of  the  place  of  residence. 

690.  In  a  foreign  country,  no  one  can  demand  the  recognition 
of  the  authority  of  the  law  regulating  his  civil  status,  personal 
statute  and  the  enjoyment  of  the  resulting  rights,  if  the  result  of 
the  application  of  that  law  were  a  derogation  from  the  territorial 
laws  of  public  order  or  the  public  law  of  the  state. 

Compare,  for  the  development  of  the  idea  set  forth  in  the  proposed  rule, 
Fiore,  Diritlo  interna zionale  privato,  v.  Ill,  §§  1321-1326;  the  paper  on  the  limi- 
tation of  the  authority  of  foreign  law  in  the  Alti  dell'  Accademia  di  scienze 
morali  di  Napoli,  v.  XXXVIII,  1907,  and  the  article  in  the  Journal  du  Droit 
international  prive,  1908,  p.  351. 

DUTIES   OF   MAN   AS   A    CITIZEN 

691.  Every  person  who  is  actually  the  citizen  of  a  state  is  bound 
to  fulfill  the  obligations  of  citizenship. 

692.  Every  citizen  must  be  considered  bound  to  discharge  the 
civic  obligations  based  on  citizenship,  such,  for  example,  as  war 
contributions,  forced  loans,  and  military  service.  He  cannot  be 
exempted  therefrom  during  his  sojourn  in  a  foreign  country. 

693.  The  citizen  who  lives  in  a  foreign  country  and  fails  to  heed 
a  call  by  the  government  of  his  country  to  fulfill  his  military  serv- 
ice, is  liable  to  punishment  on  his  return  to  his  native  land;  but 
he  cannot  be  compelled  by  the  foreign  govermnent  to  comply  with 
that  duty.  In  fact,  it  is  not  bound  to  lend  its  assistance  to  compel 
the  unwilling  foreigner  to  serve  in  his  native  army. 

694.  A  citizen  should  avoid  any  act  liable  to  prejudice  the  inter- 
ests of  a  foreign  state,  thus  exposing  his  own  country  to  a  weaken- 
ing of  its  friendly  relations  with  that  state. 

It  is  within  the  power  of  every  state  to  adopt  the  necessary 
measures  to  prevent  its  good  relations  with  foreign  states  from 
being  affected  by  the  acts  of  private  persons  and  to  punish  them 
for  injuries  committed,  in  order  to  avoid  any  moral  responsibility 
attaching  to  unjustifiable  indifference. 

This  rule  may  be  applied  where  no  real  prejudice  to  the  rights  of  a  foreign 
state  subject  to  penal  sanctions  is  involved,  but  where  injury  to  interests 
worthy  of  consideration  comes  into  question. 

Let  us  supi)ose  that  an  association  of  si)eculators  wishes  to  depreciate  the 
public  funds  of  a  foreign  state  and  speculates  on  the  fall  of  its  securities  brought 
about  by  methods  known  to  gamblers,  and  tliat  a  dishonest  iutent  to  carry  out 


310  INTERNATIONAL  LAW   CODIFIED 

a  fraudulent  speculation  is  apparent.  It  seems  to  us  that  in  this  case  the  gov- 
ernment should  be  bound  to  adopt  the  necessary  measures  to  prevent  the 
foreign  interests  involved  from  sustaining  damage. 

The  same  would  apply  to  an  association  which  aims  to  bring  about  the  failure 
of  an  undertaking  of  public  interest  which  a  state  has  assumed.  Although  the 
members  of  the  scheme  may  not  commit  actual  statutory  offenses,  if  it  is 
established  that  they  are  acting  in  accord  to  carry  out  their  dishonest  purpose, 
we  believe  that  some  preventive  action  of  the  government  which  desires  to 
maintain  friendly  relations  with  the  foreign  state  must  be  considered  as  obliga- 
tory by  virtue  of  the  moral  duty  of  all  states  to  co-operate  for  their  reciprocal 
well-being  and  prevent  any  act  liable  to  entail  serious  and  considerable  injury 
to  a  friendly  state. 

Without  entering  more  deeply  into  the  question,  we  may  observe  that  our 
rule  should  be  understood  with  the  moderation  required  by  political  prudence 
and  the  art  of  government. 

695.  While  abroad,  the  citizen  should  not  degrade  his  character 
and  dignity  as  such.  In  the  event  of  his  committing  grave  offenses, 
such  as  those  subject  to  punishment  restricting  personal  liberty 
for  at  least  three  years,  without  having  been  tried  by  the  courts  of 
the  place  where  the  offense  was  committed,  or  without  having  un- 
dergone the  punishment  pronounced  by  those  courts,  he  ought  to  be 
prosecuted  before  the  courts  of  his  own  country,  so  as  to  prevent 
international  and  political  damage  arising  out  of  his  escape  from 
punishment. 

Although  criminal  law  has  per  se  the  character  of  territoriality  in  considera- 
tion of  the  motives  and  purpose  of  criminal  law,  by  reason  of  which  it  cannot 
be  regarded  as  personal  law,  yet  the  safeguard  of  general  interests  and  of  the 
legal  order  may  justify  the  punishment  of  the  citizen  who  has  committed  an 
offense  in  a  foreign  country  and  returns  to  his  own  without  having  expiated 
the  political  damage  resulting  from  the  offense  by  undergoing  punishment. 

Compare:  Fiore,  Effetti  inlernazionali  delle  senlenze  penali,  §33,  Turin, 
Loescher,  1877;  Id.,  Traite  de  droit  penal  international,  trans,  by  Charles  An- 
toine,  §§  61  et  seq.,  Paris,  P^done,  1879. 

696.  No  person,  even  when  he  has  renounced  or  incurred  the 
loss  of  his  nationahty,  shall  take  arms  against  his  native  country ; 
he  shall  be  held  guilty  of  a  felony  and  treason,  if  he  does  not 
strictly  observe  this  duty. 

No  civilized  state  can  compel  naturalized  citizens  to  take  arms 
against  their  native  country,  nor  urge  them  to  commit  an  act  of 
treason. 

INTERNATIONAL   DUTIES   OF  MAN 

697.  No  one  may  invoke  the  protection  of  international  law  or 
claim  the  enjoyment  and  exercise  of  the  rights  belonging  to  all 


INTERNATIONAL  RIGHTS   AND   DUTIES   OF  MAN  311 

individuals  under  international  law  unless  he  recognizes  its  au- 
thority and  complies  with  its  rules. 

698.  Every  individual,  even  when  not  the  citizen  of  any  particu- 
lar state,  is  bound  to  observe  the  rules  of  navigation  on  the  high 
seas  and  must  be  held  responsible  for  any  damage  caused  by  reason 
of  their  non-observance, 

699.  Whoever,  on  the  high  seas  is  guilty  of  an  act  characterized 
as  an  offense  under  international  law,  is  bound  to  answer  therefor, 
and  may  be  tried  and  punished  in  conformity  with  the  rules  of 
international  law.  Examples  of  such  offenses  are  piracy,  damage 
or  destruction  of  submarine  cables  and  their  apparatus,  of  inter- 
oceanic  canals,  and  of  works  intended  for  the  common  use  of  all 
states  or  the  necessities  of  navigation. 

LEGAL   SANCTION   OF  THE   INTERNATIONAL   RIGHTS   OF   MAN 

700.  The  international  rights  of  man  must  be  considered  to  be 
under  the  collective  legal  protection  of  all  civilized  states.  Any 
attempt  against  the  inviolability  and  liberty  of  man  and  against 
the  rights  which  are  his  according  to  international  law,  shall  legiti- 
mate the  collective  intervention  of  civilized  states  to  restore  the 
legal  order  violated,  complying  with  the  rules  previously  formu- 
lated and  with  those  relating  to  the  legal  sanction  of  international 
law  which  we  shall  set  forth  hereafter. 


TITLE  XXIV 

INTERNATIONAL  RIGHTS  AND  DUTIES  OF  THE 

CHURCH 

701.  Those  who  voluntarily  accept  the  principles  of  their 
religious  faith  and  have  settled  in  different  parts  of  the  world 
have  the  right  to  organize  and  to  form  as  a  church  and  to  recog- 
nize the  supreme  authority  of  the  head  of  that  church,  who  pro- 
claims the  principles  of  the  dogma  and  faith  and  provides  for  the 
government  of  their  religious  association. 

The  word  church  designates  the  association  of  worshippers  spiritually  united 
by  the  same  faith.  It  is  the  result  of  freedom  of  conscience.  It  is  natural  that 
churches  should  differ,  since  the  principles  of  belief  and  faith  cannot  be  uniform. 
Therefore,  the  liberty  to  organize  and  to  form  as  a  church  must  be  recognized 
and  respected  with  regard  to  all  persons  who,  inspired  with  the  same  faith, 
voluntarily  wish  to  unite  as  a  religious  association.  The  Roman  Catholic 
church  exists  in  fact  under  very  special  conditions,  but  it  does  not  exclude  other 
churches  having  different  principles  of  belief  and  faith  from  being  organized. 

702.  Any  state  hindering  the  free  constitution  of  the  church  or 
disregarding  the  autonomy  or  independence  of  its  head  in  the 
exercise  of  his  spiritual  authority  over  believers  in  the  faith  or 
violating  their  freedom  with  respect  to  their  faith  and  worship 
lawfully  practised,  violates  international  law. 

703.  No  church  may  claim  the  legal  status  of  a  person  of  the 
Magna  civitas  unless  its  constitution  and  organization  possess  the 
character  of  an  international  religious  institution. 

This  character  can  be  assigned  to  it  only  when  it  is  an  institution 
constituted  by  virtue  of  freedom  of  conscience  by  a  large  number 
of  persons  scattered  over  the  world,  united  as  a  religious  associa- 
tion in  the  bond  of  a  common  faith  and  subject  to  the  authority 
of  a  head  who  admittedly  has  the  supreme  power  to  promulgate 
the  dogma  and  principles  of  belief,  discipline  and  worship. 

704.  Any  church,  having  at  present  the  character  of  an  inter- 
national institution,  has  the  right  to  demand  the  application  of 
the  rules  of  international  law  for  the  enjoyment,  exercise  and  legal 
protection  of  its  rights  as  a  church. 

312 


INTERNATIONAL   RIGHTS    AND    DUTIES    OF   THE    CHURCH       313 


ROMAN    CATHOLIC    CHURCH 

705.  The  right  to  be  considered  a  world  institution  and  to  as- 
sume jure  suo  the  status  of  an  international  person  must  be  attrib- 
uted at  the  present  time  to  the  Roman  Catholic  Church. 

Just  as  certain  circumstances  of  fact  and  law  must  be  considered  essential  in 
order  that  an  association  of  men  may  assume  the  status  of  a  state,  so  must 
certain  conditions  of  fact  be  deemed  essential  in  order  than  an  association  of 
worshippers  constituted  as  a  church  may  possess  the  character  of  an  interna- 
tional institution.  Now,  whatever  may  be  thought  of  the  constitution  of  the 
Roman  Catholic  Church,  as  it  is  and  as  tradition  and  history  have  made  it, 
it  cannot  be  contested  that  it  alone  among  religions  presents  the  characteristics 
of  a  world  institution. 

Compare  rules  70  and  71. 


RIGHT   OF   AUTONOMY   AND    INDEPENDENCE   OF   THE   POPE 

706.  The  Pope,  head  of  the  Roman  Catholic  Church,  in  so  far 
as  he  exercises  his  supreme  authority  for  the  promulgation  of  the 
dogma  and  principles  of  the  faith  to  the  believers  who  freely 
consent  to  accept  them,  must  be  held  autonomous  and  independent. 

707.  The  Pope  should  enjoy  the  right  of  freedom  of  government 
in  all  matters  relating  to  the  maintenance  of  the  constitution  and 
the  organization  of  the  church  and  worship,  limiting  his  action, 
however,  to  the  purpose  of  the  church  as  a  spiritual  organization 
and  without  power,  directly  or  indirectly,  to  resort  to  coercive 
measures. 

FREEDOM    OF   GOVERNMENT 

708.  The  right  of  freedom  of  government  may  be  granted  to 
the  Pope  only  within  the  limits  of  his  legal  sphere  as  determined 
by  the  nature  and  purpose  of  his  functions  with  respect  to  the 
church  considered  as  a  spiritual  association. 

This  liberty  should  consist  in  the  free  promulgation  of  the 
principles  of  belief  and  faith  with  regard  to  those  who  voluntarily 
accept  them;  in  the  publication  of  the  precepts  insuring  the  appli- 
cation of  those  principles;  in  the  establishment  of  the  rules  of 
discipline  and  worship  without  recourse  to  coercive  measures; 
and  in  the  unrestricted  administration  of  the  government  of  the 
church. 


314  INTERNATIONAL   LAW    CODIFIED 

709.  The  right  of  the  Pope  to  communicate  freely  with  the 
clergy  and  persons  exercising  spiritual  functions  should  be  con- 
sidered as  embraced  in  the  freedom  of  government,  as  well  as  the 
convocation  and  assembling  of  synods  and  councils,  the  exercise 
in  canonical  form  of  the  ecclesiastical  legislative  power,  and  the 
pronouncing  of  censures.  Nevertheless,  the  right  to  request  the 
assistance  of  the  political  authorities  against  persons  who,  in- 
stead of  readily  submitting  to  the  orders  of  the  church,  prefer 
giving  up  their  religion,  should  be  denied. 

710.  Persons  participating  in  the  high  government  of  the  church 

or  undertaking  acts  of  spiritual  power  in  its  name,  should  be  held  ^ 

answerable  only  to  the  Pope;  they  cannot  be  held  answerable  to         f 
the  chief  executive  of  the  state  except  in  the  case  contemplated  in 
rule  714. 

711.  Any  interference  by  the  government  of  the  state  in  the         \ 
acts  and  high  administration  of  the  church  shall  be  deemed  unlaw-  i 
ful  and  contrary  to  the  principles  of  international  law  which  in- 
sure the  autonomy  and  independence  of  the  Pope. 

LIMITATION   OF   THE   RIGHTS   OF   THE   POPE 

712.  The  Pope  as  head  of  the  church  cannot  be  considered 
qualified  to  acquire  by  succession  like  the  sovereign  of  a  state, 
even  in  case  of  a  legacy  left  to  the  congregations  and  offices 
instituted  by  him  for  the  exercise  of  spiritual  power,  unless,  by 
the  law  of  the  state  where  the  succession  takes  place,  the  church 
is  recognized  as  a  legal  person. 

The  legal  capacity  to  acquire  property  rights  resides  de  jure  in  man,  who  is 
the  natural  subject  of  private  rights.  This  capacity  is  also  possessed  by  the 
state  jure  proprio  from  the  time  of  its  constitution,  because  as  an  institution 
of  social,  civil  and  political  order,  it  is  necessarily  a  legal  person.  In  effect, 
considering  the  purpose  of  the  estabUshment  of  the  state  by  the  people,  it  is 
evident  that  by  its  very  purpose,  it  is  essential  that  it  be  possessed  of  property 
and  the  capacity  to  acquire  it.  The  church,  having  regard  to  its  purpose,  is 
an  institution  of  an  ethical  and  moral  order.  The  freedom  of  association  of 
the  faithful  under  the  authority  of  their  supreme  head  must  be  considered  as 
an  essential  condition  of  its  existence  and  development.  Such  liberty  of  asso- 
ciation does  not  in  any  way,  however,  imply  the  liberty  of  incorporation.  The 
church  may  claim,  as  against  all  governments,  the  liberty  to  constitute  and 
organize  itself  and  the  enjojonent  of  all  rights  deemed  essential  to  this  end. 
That  is  why  it  may  claim  international  personality;  but  it  cannot,  as  against 
all  governments,  claim  the  right  to  acquire  property  rights. 

Property  is  not  indispensable  to  the  church  to  fulfill  its  high  mission.    Even 


INTERNATIONAL   RIGHTS    AND    DUTIES    OF   THE    CHURCH       315 

admitting  that  it  needs  economic  resources  to  exercise  its  administrative  func- 
tions, the  possession  of  property  cannot  be  considered  indispensable;  the  charity 
of  the  worshipper  so  generously  practised  under  the  form  of  Peter's  pence  is 
sufficient.  No  one  denies  to  the  Pope  the  right  to  receive  such  bounties,  and 
to  use  them  for  the  purpose  intended.  We  do  not  admit  that  the  church  as  an 
institution  is  a  necessary  legal  person.  Therefore,  the  capacity  to  acquire, 
by  succession  and  by  gift,  property  or  real  rights  in  the  territory  of  the  state  can 
be  granted  only  by  the  territorial  sovereignty  which  alone  has  the  sovereign 
power  to  confer  on  corporations,  endowed  with  legal  personality,  the  legal 
power  to  acquire  property  rights. 

Compare:  rules  75,  76;  Fiore,  Delia  capacild  dcllo  Stato  straniero,  della  Chiesa 
e  della  Santa  Sede  di  acquislare  per  successione,  in  Rivista  di  diritto  internazionale 
e  di  legislazione  comparata,  v.  IV,  1901,  p.  97;  Id.  Consultazione  pro  veritate, 
Successione  Zappa,  Conlroversia  tra  la  Grecia  e  la  Romania,  Rome,  1894. 

713.  The  exercise  of  the  administrative  functions  connected 
with  the  government  of  the  church,  when  their  sphere  of  action 
lies  within  the  domain  of  municipal  public  or  private  law,  is  sub- 
ject to  the  general  law  in  force  in  the  state  where  such  functions 
are  exercised. 

This  rule  aims  to  distinguish  between  matters  connected  with  the  govern- 
ment of  the  church  and  the  promotion  of  its  spiritual  interests  and  matters  re- 
lating to  the  administrative  functions  of  the  church.  These  administrative 
functions  must  be  sul>ject  to  the  laws  of  the  state,  whenever,  by  the  nature  of 
things,  they  fall  within  the  domain  of  public  territorial  or  private  law.  The 
independence  of  the  government  of  the  church  cannot  be  considered  as  vio- 
lated by  reason  of  the  fact,  for  example,  that  the  congregations  entrusted 
with  the  administration  of  the  Holy  See,  by  the  drawing  of  a  contract  which 
afterwards  gives  rise  to  disputes  in  private  law,  thereby  become  subject  to  the 
municipal  law  of  the  state  and  to  the  ordinary  courts.  A  contract  or  any 
private  law  relation  cannot  lose  its  character  as  such  by  reason  of  the  partici- 
pation of  some  one  who  has  a  part  in  the  government  of  the  church. 

714.  The  Pope  cannot,  by  virtue  of  his  autonomy  and  independ- 
ence in  promulgating  the  principles  of  doctrine  and  belief,  encour- 
age the  faithful  to  commit  acts  contrary  to  the  laws  of  the  state 
or  prejudicial  to  public  interests. 

It  is  the  duty  of  the  state,  while  respecting  the  inviolability  of 

the  Pope,  to  subject  to  the  laws  in  force  and  to  the  penal  sanctions 

of  municipal  law  persons  who,  because  of   religious  doctrine  or 

sentiment,  commit  overt  acts  contrary  to  the  rights  and  interests 

of  the  state. 

The  purpose  of  this  rule  is  to  determine  the  legal  domain  within  which  the 
liberty  of  the  Pope  to  undertake  acts  of  government  in  canonical  form  can  be 
exercised.  It  is  indisputable  that  the  Pope  should  not  be  held  responsible  even 
when  he  prorrailgates  the  rules  of  discii)line  imposed  on  the  faithful  who  con- 
sider themselves  bound  conscientiously  to  adopt  those  rules.  Since,  however, 
the  acts  promulgated  l)y  the  Pojw  in  matters  of  discipline  constitute  for  the 


31G  INTERNATIONAL    LAW    CODIFIED 

faithful  rules  of  conduct,  if  the  ecclesiastical  authorities  intended  through 
those  acts  to  encourage  the  worshippers  to  oppose  the  application  of  the  public 
law  of  the  state  and  its  ordinances  with  respect  to  civil  or  political  matters, 
this  fact  would  naturally  justify  the  latter  in  defending  itself  against  the  acts 
of  the  ecclesiastical  authorities.  In  the  first  place,  it  could  forbid  such  acts 
being  brought  to  the  knowledge  of  the  worshippers  by  placarding  the  outside 
of  churches  or  otherwise  prohibiting  their  publication.  Furthermore,  it  could 
suVjject  to  the  criminal  law  persons  who,  by  reason  of  the  instigation  of  the 
ecclesiastical  authorities,  have  infringed  the  rights  of  the  state. 

715.  The  Pope  cannot  exercise  any  coercive  jurisdiction,  even 
within  the  confines  of  the  buildings  assigned  to  the  Holy  See, 
or  any  functions  implying  the  exercise  of  powers  of  political  sov- 
ereignty. 

The  church  cannot  be  likened  to  a  state,  nor  may  the  Pope,  as  sovereign  of 
the  church,  be  likened  to  a  king  as  sovereign  of  the  state.  The  two  institutions 
are  essentially  different.  One  is  of  an  ethical  and  moral  order — the  church,  in 
fact,  constitutes  the  union  of  souls  spiritually  bound  by  the  same  faith.  The 
character  of  the  other  is  social  and  political.  Therefore,  it  is  evident  that  one 
institution  cannot  be  compared  with  the  other  and  that  the  rights  which  belong 
to  the  sovereign  of  the  state  cannot  be  claimed  by  the  Pope  as  sovereign  of 
the  church. 

The  Italian  law  of  May  13,  1871,  on  the  prerogatives  of  the  Sovereign  Pon- 
tiff, assimilates  the  Pope  to  a  sovereign  by  his  personal  inviolability,  by  penal 
sanctions  designed  to  prevent  and  punish  attacks  upon  this  inviolabihty  and 
by  the  sovereign  honors  conferred  on  him.  Yet,  as  it  does  not  imply  the  as- 
similation of  the  two  sovereignties,  it  cannot  imply  an  equality  of  rights, 
attributes  and  functions  of  the  two  sovereigns. 

INVIOLABILITY   OF   THE   POPE 

716.  The  Pope  should  be  considered  inviolable  and  without  re- 
sponsibility for  the  exercise  of  his  spiritual  power  and  exempt 
from  the  jurisdiction  of  the  regular  courts. 

Compare  rule  356. 

717.  It  is  incumbent  on  every  state  to  repress  by  effective  penal 
sanctions  not  only  every  attack  upon  the  person  of  the  Pope,  but 
al^o  offenses  and  insults  offered  him  through  speeches,  acts  or 
other  means  which  directly  or  indirectly  offend  him. 

Non-compliance  with  this  duty  may  justify  collective  inter- 
vention. 

RIGHT   OF   REPRESENTATION 

718.  The  Roman  Catholic  church,  which  is  to  be  considered  as 
a  person  of  the  Magna  ciritas,  has  the  power  to  exercise  the  right 


INTERNATIONAL   RIGHTS   AND    DUTIES    OF   THE   CHURCH       317 

of  representation  near  the  governments  of  states  which  have 
agreed  to  enter  into  diplomatic  relations  with  it.  The  exercise 
of  this  right,  however,  is  not  identical  with  that  exercised  between 
two  governments. 

This  right  should  be  exercised  by  persons  who  are  entrusted 
with  that  mission  by  the  Pope. 

It  is  to  be  observed  that  personality  is  one  thing  and  the  exercise  and  enjoy- 
ment of  the  rights  which  attach  to  the  person  is  another.  The  church  as  an 
international  institution,  may  assume  jure  suo  the  status  of  a  person,  but  may 
not  as  such  enter  into  relations  with  a  certain  state  and  undertake  in  fact  tlie 
exercise  and  enjoyment  of  international  rights  with  respect  to  that  state  ex- 
cept with  the  previous  consent  of  the  sovereign. 

Compare  rules  165  el  seq.  and  438. 

719.  The  right  of  legation  which  is  possessed  by  the  Roman 
Catholic  church  is  not  identical  with  the  right  of  legation  of  states; 
the  church,  moreover,  cannot  claim  to  be  considered  a  state  by 
reason  of  the  exercise  of  that  right. 

The  right  of  the  head  of  the  church  to  maintain  direct  relations  with  the 
head  of  a  state  who  has  consented  thereto  is  based  on  the  principles  of 
public  municipal  and  international  law.  Considering  the  frequent  inter- 
course between  the  ecclesiastical  and  the  political  authorities  concerning 
the  carrying  on  of  worship  and  the  administration  and  external  manifesta- 
tion of  religious  functions,  the  sovereign  of  the  state  cannot  be  denied  the 
right  to  regulate  such  matters  by  agreement  with  the  head  of  the  church  and 
even,  in  appropriate  cases,  to  conclude  a  concordat ;  nor  is  it  possible  to  deny 
the  reciprocal  right  of  the  sovereign  and  the  Pope  to  send  one  another  diplo- 
matic agents  to  regulate  matters  which  have  constituted  the  object  of  the 
concordat  or  those  with  respect  to  which,  without  having  concluded  a  con- 
cordat, the  two  authorities  desire  to  proceed  in  common  accord. 

All  this  may  serve  to  explain  the  true  character  of  the  agents  (nuncios, 
legates,  etc.),  charged  with  maintaining  friendly  relations  between  the  head  of 
the  church  and  the  sovereign  of  the  state.  It  is  apparent  how,  by  reason  of 
the  personal  independence  of  the  head  of  the  church  with  respect  to  the  exer- 
cise of  his  supreme  authority,  the  independence  of  the  persons  delegated  to 
represent  him  before  tlie  governments  which  have  consented  to  receive  them 
must  likewi.se  be  recognized.  But  in  these  matters  there  is  no  ground  to  as- 
similate the  church  to  the  state  in  the  exercise  of  the  right  of  legation.  The 
dii)lomatic  agents  of  tiie  state  represent  the  political  .sovereignty  in  the  exer- 
CLse  of  its  political  functions  and  in  its  relations  with  a  foreign  government;  the 
diplomatic  agents  of  the  Pope  represent  the  head  of  the  churcli  in  the  exerci.se 
of  his  spiritual  authority  in  so  far  as  such  authority  may  enter  into  relations 
with  the  attributes  and  functions  of  the  foreign  government.  1'herefore,  the 
two  things  differ  as  complefcly  as  the  state  and  the  church:  on  the  one  hand, 
polifical  .sovereignty  an<i  functions,  on  the  other,  spiritual  autliority  and  power. 

720.  The  diplomatic  agents  of  the  Pope  should  everywhere  be 
considered  under  the  protection  of  international  law,  so  far  as  the 


318  INTERNATIONAL   LAW    CODIFIED 

respect  due  their  public  character  and  the  liberty  to  fulfill  their 
mission  are  concerned. 

They  should  enjoy  the  prerogatives  and  immunities  attributed 
by  international  law  to  diplomatic  agents  travelling  through  the 
territories  of  third  powers  to  reach  the  seat  of  their  mission  or  re- 
turn therefrom.  In  the  state  which  has  consented  to  receive 
them  as  the  Pope's  envoys,  they  should  enjoy  the  rights,  priv- 
ileges and  immunities  which  are  granted  them  by  the  law  of  that 
state. 

,  By  article  11  of  the  Italian  law  of  May  13,  1871,  on  the  prerogatives  of  the 
Pope,  it  is  provided  as  follows:  "Envoys  of  foreign  governments  to  His  Holiness 
enjoy  in  the  kingdom  all  the  prerogatives  and  immunities  of  diplomatic  agents 
in  conformity  with  international  law. 

"To  offenses  against  them  are  extended  the  penal  sanctions  wliich  apply  to 
offenses  against  the  envoys  of  the  powers  near  the  Itahan  government. 

"Envoys  of  His  Holiness  to  foreign  governments  are  assured  in  the  territory 
of  the  kingdom  the  customary  prerogatives  and  immunities  under  the  same 
law,  when  proceeding  to  and  returning  from  the  place  of  their  mission." 

A  careful  reading  of  this  article  clearly  shows  the  inaccuracy  of  the  opinion 
that  the  law  of  1871  has  accorded  the  right  of  legation  to  the  Pope.  His 
right  to  maintain  direct  relations  with  the  sovereigns  of  states  which  consent 
thereto  unquestionably  does  not  grow  out  of  the  Italian  law  of  1871  and 
would  not  be  abrogated  should  that  law  be  repealed.  The  maintenance  of 
diplomatic  relations  through  agents  vested  with  a  public  character  is,  with 
respect  to  the  foreign  state  wishing  to  maintain  such  relations,  an  act  of  sover- 
eignty within  the  domain  of  its  autonomj'.  WTiat  the  foreign  government 
could  not  claim  as  of  right  would  be  that  the  agents  sent  by  it  and  accredited 
to  the  head  of  the  church  should  enjoy  in  Italy  the  prerogatives  and  immunities 
granted  by  international  law  to  diplomatic  agents.  Moreover,  the  Pope 
could  not  claim  that  his  envoys  be  given  in  Italy  the  same  prerogatives  and 
immunities  when  they  proceed  to  or  return  from  the  place  of  their  mission. 

That  is  what  article  11  of  the  above-mentioned  law  has  granted. 


INTERNATIONAL   DUTIES   OF   THE   CHURCH 

721.  Every  church  is  bound  to  exercise  all  its  rights  and  func- 
tions within  the  legal  limits  determined  by  its  nature  and  purpose 
as  an  institution  of  a  moral  order. 

722.  It  is  incumbent  on  the  head  of  the  church  and  on  the 
ecclesiastical  authorities  who  exercise  the  functions  of  government 
assigned  to  them  to  refrain  from  resorting  to  any  direct  or  indirect 
external  coercive  measure  to  regulate  and  preserve  discipline  and 
to  refrain  from  requesting  any  kind  of  assistance  from  the  political 
authorities. 


INTERNATIONAL   RIGHTS   AND    DUTIES    OF   THE    CHURCH       319 

723.  The  head  of  the  church  violates  international  law  and  the 
right  of  freedom  of  worship  when,  by  previous  agreement,  he  se- 
cures the  assistance  of  the  political  authorities  to  exercise  his 
spiritual  powers. 

This  is  the  case  also  when  the  object  of  the  previous  agreement 
between  the  two  authorities  is  reciprocally  to  assist  each  other  in 
the  enforcement  of  their  respective  powers. 

RELATIONS  OF  THE  CHURCH  WITH  THE  STATE 

724.  The  Roman  Catholic  church  cannot  claim  any  special 
privilege  or  prerogative  as  against  other  churches,  but  only  the 
enjoyment  of  the  international  rights  which  it  now  possesses 
in  consideration  of  the  special  historical  circumstances  in  which  it 
is  placed  with  respect  to  other  religions. 

725.  It  is  the  duty  of  every  state  to  consider  the  Roman  Catholic 
church'  as  in  the  same  legal  position  as  any  other  religion  in  its 
relations  with  municipal  public  law,  and  to  regulate  the  legal  posi- 
tion of  all  churches  so  as  to  respect  the  right  of  freedom  of  worship 
both  as  an  individual  and  as  a  collective  right. 

Compare  rules  650  et  seq.;  701  et  seq. 

726.  Every  church,  so  far  as  the  external  development  of  its 
functions  and  the  exercise  of  worship  are  concerned,  must  be 
deemed  subject  to  the  laws  of  the  state  where  the  religion  is  prac- 
tised, and  its  relations  with  the  sovereignty  of  the  state  must  be 
considered  within  the  exclusive  domain  of  public  municipal  law. 

727.  Every  state  must  insure  full  liberty  to  the  ecclesiastical 
authorities  in  the  fulfillment  of  their  duties  and  refrain  from  annoy- 
ing them  or  subjecting  them  to  investigations  or  to  censure  in  the 
matter  of  the  pronuilgation  of  dogma,  the  rules  of  discipline,  the 
administration  of  sacraments  and  religious  acts  performed  with- 
out prejudice  to  the  rights  of  the  state. 

728.  Every  state  must  be  considered  bound  to  abolish  any 
special  restriction  upon  the  exercise  of  worship  and  the  powers 
possessed  by  the  head  of  the  church.  Any  interference  of  the 
political  authority,  under  the  form  of  governmental  assent,  in  the 
publication  of  the  acts  of  the  ecclosiustical  authority  or  in  the 
exercise  of  the  powers  of  the  Sovereign  Pontiff,  must  be  considered 
as  a  violation  of  the  independence  of  the  church. 


320  INTERNATIONAL   LAW    CODIFIED 

729.  The  exercise  of  the  powers  of  the  head  of  the  church  and 
the  sovereign  of  the  state  in  their  reciprocal  relations  must  be 
considered  as  based  on  the  essential  concept  of  their  respective 
liberty  and  of  the  complete  separation  of  the  two  institutions,  ex- 
cept as  to  the  exact  determination  of  the  legal  sphere  within  which 
the  autonomy  and  independence  of  the  two  sovereignties  must  be 
acknowledged. 

730.  The  rules  which  serve  to  determine  the  relations  between 
the  political  and  the  ecclesiastical  power,  so  far  as  the  exercise  of 
their  respective  rights  and  duties  is  concerned,  may  be  the  object 
of  a  concordat  concluded  between  the  sovereign  of  the  state  and 
the  head  of  the  church,  in  conformity  with  the  constitutional  law 
of  the  state  and  with  the  rules  of  international  law. 

731.  The  concordat  cannot  be  likened  to  a  treaty  between  two 
states.  It  must  always  be  deemed  an  act  governed  by  public 
municipal  law.  Consequently,  it  remains  in  force  until  repealed. 
If,  however,  the  prerogatives  of  the  church  and  of  the  Pope  under 
international  law  should  be  recognized  in  the  concordat,  and  it 
should  then  be  repealed,  the  church  and  its  head  could  nevertheless 
claim  their  prerogatives  according  to  international  law,  which 
must  be  deemed  independent  of  concordats. 

LEGAL   PROTECTION    OF   THE   RIGHTS   OF   THE   CHURCH 

732.  The  international  rights  of  every  church  should  be  con- 
sidered under  the  collective  guaranty  of  all  the  states  which  con- 
stitute the  de  facto  society.  Differences  which  may  arise  between 
the  Pope  and  the  sovereign  of  any  state  in  the  respective  exercise 
of  their  reciprocal  rights  should  be  settled  in  the  forms  to  be  in- 
dicated hereafter  for  the  determination  of  international  disputes. 
As  to  differences  which  may  arise  from  the  exercise  of  the  re- 
spective rights  within  each  state,  they  must  be  considered  within 
the  domain  of  public  municipal  law. 

In  order  to  explain  the  basic  idea  of  this  rule,  we  would  observe  that,  being 
unable  to  disregard  the  historic  fact  that  the  Roman  Catholic  Church  has  at 
present  the  position  of  an  international  institution,  or  to  dispute  the  right 
which  it  possesses  as  such  to  be  considered  an  international  person,  although 
not  a  state,  we  have  reached  the  conclusion  that  the  church  has  international 
rights,  which  we  have  had  to  determine.  These  rights  are  quite  distinct  from 
those  which  it  may  possess  as  a  religious  association  and  as  a  corporation. 
They  must  be  determined  and  governed  by  municipal  law.     It  must  be  said 


INTERNATIONAL   RIGHTS   AND   DUTIES   OF  THE   CHURCH       321 

that  the  church  cannot,  unassisted,  insure  the  observance  and  protection  of  its 
rights;  for  it  has  not  the  powers  and  means  which  the  state  has  at  its  disposal  to 
protect  itself.  The  partisans  of  the  claims  of  the  papacy,  who  have  upheld  the 
need  of  temporal  power,  have  alleged  that  the  church  ought  to  constitute  a  state 
in  order  to  be  independent  and  to  provide  for  the  protection  of  its  rights  in  the 
same  manner  as  the  state.  It  seems  to  us,  however,  that  this  conception  is 
inspired  by  a  sophism  tending  to  confound  the  two  powers  and  to  misrepresent 
the  two  institutions.  The  legal  protection  of  the  rights  of  the  church  may  be 
achieved  through  the  collective  guaranty  of  civilized  states.  Every  state, 
whether  Cathohc  or  not,  must  protect  with  solicitude  the  freedom  of  worship 
of  its  citizens.  Cathohcs  are  not  found  in  any  one  country;  they  number 
milhons  upon  miUions  scattered  throughout  the  world.  Therefore,  all  the 
states  of  Europe,  America  and  other  parts  of  the  world  are  bound  to  protect 
the  freedom  of  religious  behef  of  their  Catholic  citizens,  and  have  the  right  and 
duty  to  prevent  the  freedom  of  their  religious  faith  from  being  violated,  not 
only  as  an  individual  but  as  a  collective  right,  in  so  far  as  all  persons  united  by 
the  same  faith  belong  to  the  Roman  Catholic  church  and  are  subject  to  the 
supreme  authority  of  the  Pope  who  represents  that  church.  Any  attack 
upon  the  autonomy  of  the  church  and  upon  the  independence  of  the  Pope  and 
the  free  exercise  of  his  rights  as  head  of  the  church  is  an  attack  upon  the  church 
itself  and  upon  the  freedom  of  worship  of  the  persons  who  constitute  it. 

Therefore,  it  is  incumbent  on  every  state,  which  must  safeguard  the  per- 
sonal rights  of  man,  including  that  of  freedom  of  conscience,  to  prevent  the 
violation  of  these  rights.  Collective  intervention  to  assure  the  autonomy  and 
independence  of  the  Catholic  Church  as  a  spiritual  institution  arises,  therefore, 
reasonably  as  a  right  and  duty  on  the  part  of  all  states  to  protect  the  right  of 
freedom  of  worship.  All  must  consider  themselves  equally  interested  in 
maintaining  the  poHtical  sovereignty  of  each  country  within  the  field  of  its 
own  rights,  by  preventing  its  taking  undue  advantage  of  those  sovereign 
powers  to  violate  rights  which,  according  to  international  law,  belong  to  the 
Roman  Catholic  Church. 

Conflict  between  the  two  institutions  cannot  alwaj'^s  be  avoided,  but  may  be 
solved  like  any  other  international  difficulty  by  peaceful  means,  namely,  good 
offices,  mediation  of  friendly  powers,  and  finallj^,  arbitration  or  other  means 
admitted  by  international  law,  of  which  we  shall  speak  hereafter.  The  Pope 
could  not  declare  war,  as  the  church  is  not  a  state;  but  he  can  be  more  effi- 
ciently protected,  so  far  as  the  exercise  and  enjoyment  of  the  rights  he  possesses 
under  international  law  are  concerned,  through  peaceful  means. 


BOOK  TWO 
INTERNATIONAL  OBLIGATIONS 


I 


TITLE  I 

GENERAL  AND  FUNDAMENTAL  RULES 

733.  International  obligations  arising  between  one  state  and 
another  are  derived  from  treaties,  acts  (cartels,  manifestos,  dec- 
larations, etc.)  and  facts  which  imply  and  involve  international 
effects  and  relations  voluntarily  created  by  those  exercising  sov- 
ereign power. 

734.  States  alone,  by  express  or  tacit  consent,  may  assume  to- 
ward one  another  the  obligation  to  give,  to  do  or  forbear  from 
doing  a  particular  thing;  to  regulate  or  to  limit  the  exercise  of 
their  respective  rights;  or  to  annul  or  to  modify  the  obligations 
previously  assumed. 

735.  Every  obligation  contracted  by  one  state  toward  another 
produces  a  legal  duty  of  the  obligor  to  carry  out  his  undertaking, 
and  a  legal  right  of  the  obligee  to  demand  and  exact  its  fulfillment. 

The  object  of  the  above  rules  is  to  establish  the  nature  and  true  character 
of  an  international  obHgation  and  to  determine  its  subjects. 
vThe  international  obligation,  unhke  that  which  may  exist  between  private 
persons  in  civil  and  commercial  matters,  is,  by  reason  of  its  nature  and  object, 
a  poHtical  and  public  obligation."^  Whether  it  produces  engagements  and 
rights  of  the  nature  of  property,  or  is  designed  to  regulate  and  hmit  the  exer- 
cise of  the  respective  sovereign  rights,(it  always  implies  an  engagement  con- 
tracted by  the  state,  as  a  pohtical  person,  towards  one  or  more  states,  with 
which  it  has  intercourse  in  international  society.) 

Engagements  of  a  property  or  fiscal  nature  affect  the  economic  life  and  finan- 
cial interests  of  the  state  as  a  person,  and  do  not  distinctly  burden  the  individ- 
uals who  compose  the  state,  but  rather  the  political  community  considered  as 
an  universitas:  Quod  debet  universitas  singuli  non  debent  and  quod  universitas 
debet nr,  singulis  non  debetur. 

It  follows,  therefore,  that  the  proper  subject  of  an  international  obligation, 
even  when  it  consists  in  the  obligation  to  give,  to  do  or  forbear  from  doing,  can 
only  be  the  state  as  a  political  institution. 

The  same  is  true  of  obligations  which  may  arise  from  facts  involving  in- 
ternational effects  and  relations,  because  it  is  evident  that  the  state  alone  as 
an  univers-itas  can  a.ssume  the  responsibility  arising  out  of  the  exercise  of  sov- 
ereign powers  in  international  relations. 

Obligations  which  seek  to  regulate  or  limit  the  exercise  of  reciprocal  rights 
of  sovereignties  can  be  contracted  only  by  states.  They  alone  by  reciprocal 
agreement  can  establish  particular  rules  of  their  respective  relations  and 

325 


326  INTERNATIONAL   LAW   CODIFIED 

pledge  themselves  to  subject  their  acts  to  the  particular  legal  rules  adopted 
in  common.  Thus,  through  reciprocal  agreement  states  may  recognize  the 
binding  force  of  any  particular  legal  rule  by  assigning  to  it  the  authority  of 
"common"  law. 

It  is  evident,  therefore,  that  the  state  alone  may  contract  an  international 
obligation,  and  that,  accordingly,  it  alone  may  be  considered  as  a  subject 
capable  of  concluding  an  international  treaty. 

One  of  the  arguments  invoked  by  authors  who  have  firmly  upheld  the 
aphorism  that  the  state  alone  may  be  deemed  the  subject  of  international  law, 
is  that  it  alone  can  conclude  a  treaty.  But  this  argument  is  of  questionable 
value  if  we  take  into  consideration  the  fact  that  the  capacity  of  every  one  is 
determined  by  his  legal  status.  We  also  admit  that  the  state  alone  can  con- 
tract a  true  international  obligation;  but  that  is  not  at  all  inconsistent  with 
what  has  been  said  in  Book  I,  with  respect  to  the  persons  and  entities  subject 
to  international  law  and  is  explained  by  the  simple  consideration  that  the 
state  alone  may  be  regarded  as  capable  of  so  contracting.  We  must  repeat 
that  the  legal  capacity  of  every  one  depends  absolutely  on  his  legal  status, 
and  recall  that  while  we  have  admitted  that  man  and  the  church  are  persons 
of  the  international  society,  we  have,  on  the  other  hand,  always  maintained 
that  their  legal  status  is  substantially  different  from  that  of  the  state.  Accord- 
ingly, the  unquestionable  conclusion  is  that  their  capacity  must  also  be  differ- 
ent. It  is  clear,  therefore,  why  the  state  alone  may  sign  a  treaty  and  assume 
international  obligations. 

The  international  obligation,  being  inherently  political  and  public,  can  be 
created  only  by  the  state,  which  is  a  political  and  public  institution. 

736.  Express  or  tacit  consent  is  the  basis  of  every  positive  obli- 
gation contracted  by  one  state  toward  another. 

This  rule  must  be  understood  in  the  sense  that,  through  reciprocal  consent, 
states  may  assign  the  authority  of  law  to  rules  agreed  upon  and  not  in  the  sense 
that  their  reciprocal  consent  may  be  sufficient  to  create  an  obligation.  The 
sovereign  power  to  create  an  obligation  by  consent  is  limited  mainly  by  the 
legality  of  the  subject-matter  and  by  the  substantial  requirements  for  the 
validity  of  the  consent. 

See  rules  760  et  seq. 

737.  Two  or  more  states  which,  by  words  or  acts  equivalent 
to  words,  have  manifested  the  agreement  of  their  wills  to  establish 
or  modify  their  respective  rights  or  to  regulate,  annul  or  limit  a 
legal  relation  subsisting  among  them,  must  be  considered  as  re- 
ciprocally bound  by  reason  of  their  consent,  expressly  manifested, 
to  observe  their  engagements. 

738.  Every  state  which,  in  its  relations  with  another,  has  volun- 
tanly  observed  a  constant  rule  of  conduct  in  a  series  of  acts,  un- 
equivocal, uniform,  notorious,  continuous  and  in  conformity  with 
international  law,  is  to  be  held  bound,  by  tacit  consent,  to  adhere 
to  that  rule  of  conduct  so  long  as  it  is  not  expressly  disavowed,  or 
events  arise  which  prevent  its  observance. 


GENERAL   AND    FUNDAMENTAL   RULES  327 

739.  No  consensual  obligation  should  be  held  valid  if  contrary 
to  a  rule  of  international  "common"  law. 

740.  Every  state  must  be  considered  legally  liable,  by  reason 
of  its  international  responsibility,  for  all  the  consequences  of  in- 
juries inflicted,  in  the  exercise  of  sovereign  powers,  upon  a  foreign 
state  or  private  individual.   . 

DIFFERENT   FORMS   OF   OBLIGATIONS 

741.  Consensual  obligations  between  states  are  bilateral  or 
unilateral. 

By  the  former,  the  contracting  parties  reciprocally  obligate  one 
another. 

The  unilateral  obligation  is  one  contracted  by  a  state  towards 
one  or  more  states,  without  the  assumption  of  a  corresponding 
obligation  by  the  latter. 

742.  All  obligations  contracted  by  states  may  be  divided  into: 
a.  Positive  or  negative; 

6.  Simple  or  conditional; 

c.  Joint  or  alternative; 

d.  Principal  or  accessory; 

e.  Binding  or  optional; 

/.  Divisible  or  indivisible; 

g.  Of  definite  or  indefinite  duration, 

743.  The  substance  of  an  obligation,  having  regard  to  its  nature, 
must  be  determined  according  to  the  general  principles  of  "com- 
mon" or  natural  law,  in  so  far  as  a  similarity  between  the  obliga- 
tions contracted  by  private  persons  and  by  states  may  be  admitted. 

Although  the  general  principles  of  "common"  and  natural  law  relating  to 
consensual  obligations  and  to  their  nature  and  consequences  cannot  be  ma- 
terially different  from  those  applicable  to  obligations  contracted  by  states, 
it  would  nevertheless  be  a  mistake  to  admit  of  a  complete  similarity  between 
civil  and  international  obligations. 


TITLE  II 

TREATIES  AND  THE  CONDITIONS  FOR   THEIR 

VALIDITY 

TREATIES   IN    GENERAL 

744.  Any  convention  between  two  or  more  states,  drawn  up 
in  writing  and  concluded  witii  a  view  thereby  to  create  an  obliga- 
tion or  to  annul  or  modify  one  already  subsisting,  is  called  a  treaty. 

745.  Treaties  may  be  divided  into  named  and  unnamed. 

The  former  are  those  which  by  international  law  are  designated 
by  a  particular  name,  derived  from  the  subject-matter  of  the 
agreement.  Such  are  treaties  of  commerce,  territorial  cession, 
extradition  and  the  like. 

Unnamed  treaties  are  those  concluded  for  different  objects,  not 
subsumed  under  a  specific  name,  but  which,  nevertheless,  affect 
certain  political  or  social  interests  of  states.  They  are  more  com- 
monly called  conventions. 

746.  Whatever  the  denomination  of  a  written  act  concluded 
by  the  sovereignty  of  the  state  to  declare  its  will  to  bind  itself,  the 
resulting  international  obligation  with  all  its  effects  should  be 
considered  as  subsisting  whenever  the  act  complies  with  the  sub- 
stantial conditions  necessary  to  its  validity. 

In  practice  written  acts  containing  agreements  between  two  or  more  states 
are  sometimes  called  either  treaties,  conventions,  declarations,  cartels,  or 
protocols,  etc.  These  various  names,  however,  do  not  alter  the  substance, 
because  the  desire  to  bind  oneself  may  be  valid  whatever  the  act  be  called. 
According  to  the  commonest  usage,  the  term  treaty  is  applied  to  the  more 
important  acts,  for  example,  those  relating  to  commerce  and  navigation;  and 
the  term  convention  to  the  less  important  acts,  such  as  agreements  for  the 
publication  of  customs  tariffs,  for  the  exchange  of  parcels  post,  and  for  the 
regulation  of  the  transportation  of  merchandise  by  railroad,  etc.  The  term 
declaration,  or  simple  agreement,  designates  conventions  relating  to  particular 
objects,  such  as  the  interpretation  of  the  articles  of  a  treaty,  or  the  engagement 
to  communicate  reciprocally  certain  acts  (acts  of  civil  status,  information 
service,   etc.) 

328 


TREATIES    AND    THE    CONDITIONS    FOR   THEIR    VALIDITY       329 


REQUIREMENTS   FOR  THE   VALIDITY  OF  A  TREATY 

747.  The  conditions  necessary  to  the  validity  of  a  treaty  are: 

a.  The  capacity  of  the  parties; 

b.  Reciprocal  consent,  legally  expressed; 

c.  A  lawful  and  attainable  object,  according  to  the  principles 

of  international  law. 

See  our  work:  Trallato  di  Dirilto  inlernazionale  pubblico,  4th  ed.,  V.  2;  Con- 
dizioni  inlrinseche  per  la  validild  di  un  trattato,  pp.  273  et  seq. 


CAPACITY   TO    CONCLUDE   A   TREATY 

748.  Any  state  which  enjoys  rights  of  sovereignty  must  be 
deemed  capable,  in  principle,  of  concluding  a  treaty  and  thus 
contracting  legal  obligations  and  acquiring  rights  with  respect  to 
the  other  contracting  party,  subject,  however,  to  the  limitation  set 
forth  in  rule  739. 

This  capacity,  furthermore,  may  be  possessed  by  associations 
to  which  international  personality  has  been  attributed  (see  rule 
81)  within  the  limits,  nevertheless,  of  the  purposes  for  which  per- 
sonality was  recognized  and  is  considered  as  subsisting. 

The  International  Congo  Association,  to  which  international  personality 
was  attributed  for  the  limited  purpose  for  which  it  was  formally  recognized,  was 
regarded  as  capable  of  concluding  treaties,  and  has  concluded  several,  including 
one  with  Italy,  December  19,  1884. 

The  Customs  Association  of  the  German  States,  known  as  the  Zollverein 
had  the  power  to  and  did  conclude,  in  its  own  name,  several  treaties,  until  it 
lost  its  international  personality  by  the  establishment  of  the  German  Empire. 

749.  The  power  to  conclude  treaties  may  be  attributed  to 
states  not  fully  possessed  of  international  personality,  when,  by 
the  constitutional  law  governing  their  union,  this  power  is  re- 
served to  them  for  certain  specific  objects. 

It  is  always  necessary  to  refer  to  the  constitutional  compact  which  governs 
the  union  of  two  or  more  states  and  their  relations  of  protectorate  or  vassalage, 
to  establish  their  capacity  to  conclude  treaties  and  the  limitations  on  their 
capacity. 

Semi-sovereign  states  sometimes  have  the  power  to  conclude  treaties  which 
have  neither  the  nature  nor  the  character  of  political  treaties,  such,  for  ex- 
ample, as  conventions  relating  to  the  postal  service  and  transportation  by 
railroads.  Bulgaria,  which,  under  Article  8  of  the  Treaty  of  Berlin  of  July  l.S, 
1878,  was  not  capable  of  concluding  treaties  of  commerce  and  of  a  political 
character  without  the  previous  consent  of  the  Porte,  nevertheless,  on  June  ll/ 


330  INTERNATIONAL   LAW    CODIFIED 

23rd,  1893,  concluded  a  treaty  with  Greece  to  regulate  the  question  of  the 
nationality  of  Greeks  living  in  the  principality.  In  like  manner,  in  order  to 
determine  the  competency  of  Egypt,  it  is  necessary  to  examine  its  relations 
with  Turkey,  so  as  to  determine  within  what  limits  it  may  conclude  treaties 
with  foreign  states. 

750.  In  a  state,  constituted  under  the  form  of  a  federated  state 
or  of  a  confederation,  the  power  of  the  individual  states  to  con- 
clude treaties  must  be  determined  by  their  international  person- 
ality, as  fixed  in  the  constitutional  compact. 

A  federative  union  or  confederation  of  several  states  may  sometimes  give 
rise  to  an  international  personality  based  on  the  title  of  the  union  and  distinct 
from  the  international  personality  of  the  states  united  as  a  confederation. 
Such  was  the  case  with  the  former  Germanic  Confederation,  which  had  its 
legal  personality  as  such  and  could  conclude  treaties  concerning  matters  of 
general  interest  to  the  confederation,  as  it  had  been  created  by  the  final  act 
of  the  Congress  of  Vienna  of  1815.  This  international  personality  possessed 
by  the  confederation  permitted  that  of  the  constituent  states  to  subsist  and 
with  it  the  capacity  of  each  to  conclude  treaties  within  the  limits  of  its  own 
jurisdiction. 

PERSONS  COMPETENT  TO  CONCLUDE  TREATIES 

751.  Only  persons  having  the  power  to  negotiate  and  conclude 
a  treaty  under  the  constitutional  law  of  the  state  should  be  deemed 
competent  to  negotiate  a  treaty  in  the  name  of  the  state. 

752.  When,  by  the  constitutional  law  of  a  state,  the  Executive 
is  given  the  power  to  negotiate  treaties,  reserving  to  another  gov- 
ernmental body  a  final  assent  to  their  definitive  conclusion,  the 
rules  of  the  constitution  govern  the  competency  of  the  various 
parties  in  the  conclusion  of  treaties. 

According  to  the  constitution  of  the  Kingdom  of  Italy,  Article  5,  the  King, 
as  chief  executive,  is  competent  to  conclude  treaties  of  peace,  alliance  and 
others,  with  the  single  obligation  that  he  must  notify  Parliament.  As  to 
treaties  involving  financial  burdens  or  changes  in  the  territory  of  the  state, 
they  become  effective  only  after  their  approval  by  Parliament.  Therefore, 
the  King  may  conclude  a  treaty  of  navigation,  but  commercial  treaties,  which 
necessarily  have  financial  consequences,  can  become  valid  only  after  their 
approval  by  Parliament. 

In  Germany,  under  Article  11  of  the  Constitution  of  April  16,  1871,  the  Em- 
peror represents  the  Empire  in  its  international  relations  and  concludes  with 
foreign  states  treaties  of  alliance  and  others  in  the  name  of  the  Empire.  If, 
however,  the  treaties  refer  to  objects  which,  according  to  the  provisions  of 
Article  4,  are  within  the  sphere  of  legislative  competence  of  the  Empire,  the 
assent  of  the  Federal  Council  (Bundesrat)  is  required  for  their  conclusion  and 
the  ratification  of  the  Reichstag  for  their  validity. 

It  is  clear  that  under  this  article,  the  Emperor  cannot  alone  assure  the 


TREATIES    AND    THE    CONDITIONS    FOR    THEIR   VALIDITY       331 

validity  of  treaties  of  commerce,  customs  and  those  relating  to  the  other  ob- 
jects specified  in  Article  4  of  the  Constitution. 

Compare:  Fiore,  Trattalo  di  Dirillo  internazionale,  §  1019. 

753.  Plenipotentiaries  may  be  considered  as  properly  delegated 
to  represent  the  state  to  negotiate  and  conclude  a  treaty,  when 
they  arc  provided  with  official  full  powers,  conferred  upon  them 
for  that  purpose.  They  should  be  exhibited  to  the  other  party, 
who  should  take  cognizance  of  them.  Conventions  concluded 
within  the  limits  of  the  full  powers  officially  exhibited  should  be 
regarded  as  legally  concluded. 

754.  Secret  instructions  given  to  the  plenipotentiary  delegated 
to  conclude  a  treaty  cannot  have  any  legal  force  to  modify  in  its 
international  effects  the  full  powers  officially  communicated  to  the 
other  contracting  party. 

In  case  the  plenipotentiary  has  concluded  a  treaty  within  the 
limits  of  the  full  powers  exhibited,  but  contrary  to  the  secret 
instructions  of  his  government,  he  would  incur  personal  responsi- 
bility to  his  government,  which  might  justifiably  punish  the  de- 
linquency in  conformity  with  its  municipal  law,  but  could  not  affect, 
in  any  way,  the  legal  value  of  the  international  obligation  con- 
tracted by  virtue  of  the  instructions  contained  in  the  full  powers  of 
its  agent. 

RATIFICATION   OF   TREATIES 

755.  Ratification  must  be  considered  essential  to  making  a 
treaty  final  and  perfect: 

a.  When  required  by  the  constitutional  law  of  the  state  to  make 

the  treaty  binding  upon  it; 
h.  When  the  plenipotentiaries  who  negotiated  and  concluded 
the  trcat}'^  have  made  its  validity  dependent  upon  its  rati- 
fication by  the  sovereign  they  represent  or  by  the  proper 
authorities. 
Outside  of  these  cases  a  treaty  concluded  by  a  plenipotentiary 
and  signed  by  him  without  reserving  ratification,  by  virtue  of  the 
full  powers  conferred  on  him  and  duly  exhibited  to  the  other  party, 
and  within  the  strict  limits  of  his  powers,  must  be  considered  as 
final  and  perfect  from  the  day  of  its  signature. 

Ratification  cannot  be  considered  an  essential  condition  of  the  conclusion 
of  a  treaty  when,  under  the  constitutional  law,  the  sovereign  has  the  power  to 


332  INTERNATIONAL   LAW    CODIFIED 

conclude  it.  There  is  nothing  in  that  case  to  prevent  the  sovereign,  as  chief 
executive  of  the  state,  from  delegating  his  power  to  a  plenipotentiary  by  con- 
ferring on  him  the  right  to  definitively  conclude  and  sign  his  name  to  the 
treaty.  A  treaty  executed  under  such  circumstances,  so  far  as  the  interna- 
tional obligations  contracted  by  the  chief  executive  of  the  state  are  concerned, 
must,  independently  of  ratification,  be  held  perfect  and  final  for  all  purposes 
as  between  the  contracting  parties. 

If ,  as  is  the  case  under  the  Italian  constitution,  the  head  of  the  state  may 
conclude  certain  treaties,  on  condition  of  notice  to  the  legislative  bodies,  that 
formality  should  be  deemed  one  of  mere  municipal  public  law.  Therefore, 
treaties  of  that  category,  concluded  by  a  plenipotentiary  vested  with  fuU 
powers  of  concluding  them  independently  of  the  sovereign's  ratification, 
ought  to  be  regarded  as  perfect  and  final  as  an  international  obligation.  Even 
if  the  chief  executive  should  fail  to  give  notice  of  such  a  treaty  to  the  legisla- 
ture, the  result  would  be  that  within  the  state  the  treaty  could  not  be  consid- 
ered to  possess  binding  legal  force,  by  reason  of  the  absence  of  a  constitutional 
formality.  But  it  would  not  lessen  in  the  least  the  legal  value  of  the  treaty 
with  respect  to  the  foreign  state  and  might  involve  the  international  re- 
sponsibility of  the  government  for  having  failed  to  do  what  it  should  have 
done  to  make  the  treaty  binding  on  its  citizens. 

The  case  is  quite  different  when,  under  the  constitution,  the  head  of  the 
state  is  not  qualified  to  conclude  the  treaty  without  the  consent  of  the  legisla- 
ture. In  such  case,  as  the  other  contracting  party  must  know  the  power  of 
its  co-contracting  party,  it  cannot  consider  the  approval  of  the  legislature  as  a 
question  of  public  municipal  law,  but  a  condition  indispensable  to  the  legal 
value  of  the  treaty.  In  the  absence  of  this  condition  precedent  there  is  no 
treat}',  nor  do  the  international  obligations  created  therein  by  the  chief  ex- 
ecutive exist,  for  the  reason  that  the  latter  had  the  power  to  enter  into  an 
obligation  only  with  the  consent  of  the  legislature. 

In  practice  treaties  concluded  by  plenipotentiaries  become  binding  between 
the  contracting  parties  from  the  day  of  the  exchange  of  ratifications.  This  prac- 
tice, however,  does  not  preclude  treaties  of  the  first  category  from  being  con- 
sidered final  and  perfect  independently  of  ratification,  when  such  reservation 
of  ratification  is  not  stipulated  in  the  full  powers,  or  was  not  made  by  the 
plenipotentiary  in  the  protocol  of  signature. 


CONSENT   REQUIRED    FOR   THE    VALIDITY    OF   A   TREATY 

756.  Treaties  concluded  between  states  must  be  freely  assented 
to.  Assent  is  not  valid  if  given  by  mistake,  extorted  by  violence 
or  obtained  by  fraud. 

757.  The  consent  cannot  be  considered  as  lacking  freedom  when 
the  treaty  is  assented  to  under  pressure  of  a  hostile  power 
which  has  occupied  part  of  the  state  territory,  threatening  the 
invaded  state  with  greater  disaster  if  the  proposed  conditions 
should  not  be  accepted. 

In  laying  down  this  rule  we  do  not  mean  to  say  that  any  condition  whatever 
imposed  by  the  victor  on  the  vanquished  and  accepted  in  a  treaty  should  be 


TREATIES   AXD    THE   CONDITIONS   FOR   THEIR    VALIDITY       333 

considered  as  freely  assented  to.  It  is  necessan*  in  that  respyect  to  apph'  the 
rules  relating  to  treaties  of  peace  and  the  lawful  subject-matter  of  conventions 
between  the  victor  and  the  vanquished.  We  do  say,  however,  that  when  a 
party,  taking  advantage  of  its  right  to  resort  to  armed  force  to  compel  an  ad- 
verse party  to  give,  to  do  or  refrain  from  doing,  or  to  recognize  a  disputed 
right,  has  occupied  the  territorj-  of  the  enemj-  in  order  to  compel  the  latter  to 
recognize,  against  its  will,  the  disputed  right,  or  to  make  amends  for  an  offense, 
and  has  imposed  on  the  vanquished,  with  that  end  in  view,  the  obhgation  to 
sign  a  treaty,  the  fact  that  the  latter  has  consented  to  such  signature  mereh- 
for  the  sake  of  avoiding  greater  calamities  cannot,  in  itself,  constitute  suflBdent 
ground  for  invalidating  the  treaty  on  the  pretext  that  the  vanquished  lacked 
full  hberty  of  assent  at  the  time  of  signature. 

758.  Duress  resorted  to  bj^  one  party  to  a  treaty  against  an- 
other is  a  ground  for  nullity  only  when  it  constitutes  true  physical 
violence,  or  when  the  person  who  signed  the  treat}'  was  compelled 
to  do  so  through  external  constraint  which  deprived  him  of  all  de- 
liberation and  freedom  of  judgment. 

Such  would  be  the  case  of  a  treaty  concluded  by  a  sovereign  fallen  into  the 
power  of  the  enemy  and  constrained  to  sign  it  by  means  of  bodily  violence  or 
by  reason  of  measures  calculated  to  inspire  him  with  a  justifiable  fear. 

759.  Fraud  may  be  deemed  a  ground  for  the  nullity  of  treaties 
only  when  the  fraudulent  methods  resorted  to  by  one  of  the  parties 
were  such  as  to  mislead  the  other  party  as  to  the  object  of  the 
convention. 

This  rule  finds  its  appUcation  in  the  case  of  treaties  concluded  by  a  plenipo- 
tentiarj-  possessing  absolute  and  full  powers,  with  faculty  to  conclude  finallj-, 
without  necessity  of  ratification.  Diplomatic  devices  resorted  to  by  a  jxarty, 
even  if  such  that  the  other  party  without  them  would  not  have  signed  the 
treaty,  would  not  in  themselves  constitute  a  grotmd  for  nullity.  The  rules  of 
the  civil  law  relating  to  the  vahdity  of  obhgations  and  to  the  defects  of  consent 
cannot  be  fully  applied  to  international  treaties.  Indeed,  these  acts,  while 
consensual  conventions,  can  not  be  subject  to  the  same  rules  as  consensual 
contracts  between  private  p>ersons,  because  the  general  interests  of  mankind 
require  that  treaties  be  resp>ected,  and  the  rules  relating  to  duress,  fraudulent 
de%-ices  and  mistake  as  causes  \itiating  consent  in  contracts  between  private 
persons  experience  important  modifications  in  the  case  of  international  con- 
ventions concluded  between  states. 


LAWFUL   SUBJECT-MATTER    OF   TREATIES 

760.  No  State  may  by  a  treaty  engage  to  do  an%'thing  contrary- 
to  positive  international  law  or  to  the  precepts  of  morals  or  uni- 
versal justice.  No  state  may  by  treaty  absolutely  renoimce  its 
fundamental  rights,  enumerated  in  rule  62. 

761.  A  lawful  subject-matter  of  contracts  between  states  should 


334  INTERNATIONAL    LAW    CODIFIED 

be  considered  to  be  only  such  as  concerns  the  public  interests 
of  the  state  and  may  be  regarded  as  within  the  conventional 
power  of  the  contracting  parties,  according  to  the  principles  of 
"common"  law. 

762.  An  engagement  which  violates,  to  the  injury  of  another 
state,  an  obligation  previously  contracted  by  treaty  with  one  of 
the  parties,  cannot  constitute  the  object  of  a  convention. 

763.  Anything  implying  a  violation  of  the  constitutional  law 
of  either  contracting  party  cannot  constitute  a  lawful  subject- 
matter  of  a  treaty.  But  a  subject-matter  not  in  harmony  with  the 
municipal  law  of  one  of  the  contracting  parties  may  be  covered 
by  a  treaty,  provided  the  contracting  party  has  not  conditioned 
the  legal  force  of  the  treaty  upon  a  change  in  its  municipal  law. 

The  sovereign  of  a  state  cannot  be  regarded  as  competent  to  violate  the 
constitution,  and  since  the  other  party  ought  not  to  be  ignorant  of  the  consti- 
tutional law  of  the  state  with  which  it  is  negotiating,  it  is  impossible  to  con- 
sider as  the  lawful  subject-matter  of  a  treaty  anything  directly  opposed  to  the 
respective  constitutional  law  of  the  contracting  states. 

As  the  laws  in  force  may  be  amended  when  not  contrary  to  constitutional 
law,  a  treaty  cannot  be  considered  void  on  the  ground  that  the  law  in  force  is 
an  obstacle  to  the  fulfillment  of  the  engagements  contracted.  It  is  for  the 
government  to  decide,  with  political  foresight,  whether  it  may  rely  on  the 
enactment  of  legislative  changes  necessary  for  the  execution  of  the  treaty 
subscribed.  Undoubtedly,  if  it  had  made  the  validity  of  the  treaty  conditional 
upon  anticipated  changes  in  its  municipal  legislation,  it  would  be  bound  to  do 
everything  in  its  power  to  obtain  from  the  legislature  the  necessary  amend- 
ment of  its  municipal  law.  If,  on  the  contrary,  without  political  foresight,  the 
government  had  concluded  a  treaty  promising  the  legislative  amendments 
required  for  its  execution  and  if  it  then  transpires  that  the  legislature  refuses 
to  amend  the  laws  in  force,  the  state  would  incur  a  double  responsibility,  that 
is  to  say,  political  responsibiUty  of  the  government  to  the  representatives  of 
the  nation  and  international  responsibility  to  the  other  contracting  party. 
The  political  responsibility  would  raise  a  question  of  public  municipal  law;  and 
when  the  head  of  the  state,  notwithstanding  its  opposition  to  municipal  legis- 
lation, declares  the  treaty  executory,  the  municipal  courts  of  the  state  are  not 
bound  to  give  it  effect.  If,  however,  he  fails  to  declare  the  treaty  executory 
by  reason  of  its  opposition  to  municipal  legislation,  he  incurs  international 
responsibility  for  having  contracted  with  another  state  an  obligation  he  was 
unable  to  fulfill.  The  treaty,  considered  as  a  convention  between  states,  can- 
not become  null  and  void  because  the  executive  of  one  of  the  states  could  not 
obtain  from  the  legislature  the  promised  amendment  of  municipal  legislation, 
by  which  promise  he  engaged  his  international  responsibility  for  having  con- 
tracted without  reservation  an  engagement  which  afterwards  he  found  him- 
self unable  to  fulfill. 


TREATIES   AND   THE    CONDITIONS    FOR   THEIR    VALIDITY       335 
EXTRINSIC   REQUIREMENTS,    INCLUDING    FORM 

764.  Internatioual  treaties  should  be  drawn  up  in  writing,  and 
do  not  acquire  perfect  form  until  they  have  been  subscribed  by  all 
the  parties  to  them. 

765.  An  agreement  upon  certain  articles  of  a  treaty,  even  when 
drawn  up  in  writing  and  signed  by  the  contracting  parties,  cannot 
be  considered  a  perfect  reciprocal  obligation  with  respect  to  the 
clauses  adopted,  independently  of  the  final  conclusion  and  signa- 
ture of  the  treaty. 

When,  however,  the  clauses  agreed  to  and  subscribed  are  con- 
sidered as  a  preliminary  convention,  concluded  in  order  to  estab- 
lish the  reciprocal  obligations  of  a  status  quo,  they  should  be  re- 
garded as  perfect  and  valid  until  the  conclusion  of  the  final  treaty 
or  of  a  formal  declaration  that  the  parties  consider  themselves 
freed  from  any  previous  engagement. 

766.  When,  in  the  negotiation  of  a  treaty,  a  reciprocal  agree- 
ment is  reached  on  various  distinct  points,  principal  or  accessory 
but  related,  and  this  agreement  has  been  drawn  up  in  writing  and 
signed  by  the  contracting  parties,  the  engagements  assumed  do 
not  acquire  binding  legal  force  until  the  treaty  is  finally  concluded 
and  agreement  established  on  all  the  separate  parts  which  con- 
stitute the  treaty  as  a  whole. 

767.  The  form  of  the  reciprocal  agreement  concluded  between 
the  contracting  parties  may  vary  according  to  the  degree  of  im- 
portance of  the  object  of  the  convention.  We  may,  therefore,  con- 
sider as  sufficient  a  diplomatic  exchange  of  two  declarations 
written  and  subscribed  by  persons  duly  authorized,  or  of  two 
cartels,  notes,  or  manifestos,  properly  subscribed. 

768.  An  agreement  relating  to  particular  matters  concluded  by 
persons  competent  to  contract  international  obligations  will  be 
valid,  even  though  not  drawn  up  in  writing,  but  concluded  verbally, 
on  condition,  however,  that  the  agreement  may  be  proved  without 
difficulty,  and  that  evidence  thereof  may  be  readily  adduced. 

This  rule  may  find  its  application  in  case  of  i)rcliminary  agreements  in  time 
of  war  concluded  by  pcjrsons  duly  authorized;  although  concluded  verbally, 
they  must  be  regarded  as  binding  as  written  conventions. 


TITLE  III 
LEGAL  FORCE  AND  EXECUTION  OF  TREATIES 

INVIOLABILITY    OF   TREATIES 

769.  International  conventions  duly  concluded  between  the 
parties  have  the  same  authority  as  law  and  must  be  held  inviolable. 

They  cannot  be  revoked  except  by  mutual  consent  of  the  parties 
or  for  causes  determined  by  international  law,  ascertained  and 
recognized  as  having  force  to  that  end. 

770.  Every  treaty  binds  the  parties,  not  only  with  respect  to 
matters  formally  promised  by  each,  but  also  incidental  matters 
which,  according  to  equity,  usage  and  the  rules  of  international 
law,  must  be  considered  as  virtually  included  in  what  was  prom- 
ised. 

771.  An  impairment  of  or  injury  to  moral  and  economic  interests, 
which  may  result  from  the  faithful  execution  of  a  treaty  duly  con- 
cluded, cannot  be  a  sufficient  reason  for  not  observing  it  (compare 
rule  778). 

Every  government  should  be  thoroughly  aware  of  the  obligations  it  con- 
tracts, and  if  it  should  inadvisedly  have  consented  without  sufficient  infor- 
mation, it  ought  to  bear  the  consequences  of  its  imprudence,  without  disavow- 
ing the  authority  and  violating  the  obligations  of  the  treaty  on  the  pretext  of 
injury  to  the  interests  of  the  state  and  possible  damage  to  itself. 

Compare  rules  787,  833  and  834. 

772.  Every  valid  treaty  gives  rise,  not  only  to  a  perfect  right 
on  the  part  of  either  party  of  exacting  the  fulfillment  of  the  as- 
sumed obligations,  but  also  to  a  right  to  prevent  third  powers 
from  meddling  in  the  agreement  or  from  placing  any  obstacle  in 
the  way  of  its  faithful  execution. 

EFFECTS   OF  TREATIES 

773.  A  treaty  takes  effect  only  from  the  time  it  can  be  consid- 
ered legally  perfect. 

774.  When  ratification  is  necessary  to  the  legal  existence  of  a 

336 


LEGAL  FORCE  AND  EXECUTION  OF  TREATIES       337 

treaty,  duly  concluded  and  signed  (see  rule  755),  it  shall  take  effect 
only  after  ratification. 

Nevertheless,  the  contracting  parties  may  stipulate  that  when 
the  treaty  is  ratified,  its  effects  should  relate  back  to  the  time  of  its 
signature.     But  this  requires  an  express  declaration. 

775.  International  conventions  must,  in  principle,  be  consid- 
ered as  having  effect  over  all  the  territory  of  the  state  and  be  re- 
garded as  extending  actively  and  passively  to  all  its  dependencies, 
unless  a  contrary  conclusion  may  be  drawn  either  from  a  special 
clause  in  the  convention,  from  the  nature  of  the  treaty  itself  or 
from  the  general  principles  of  "common"  law. 

This  rule  may  help  to  solve  the  problem  of  determining  whether  treaties 
concluded  by  a  state  should  extend  to  its  colonies,  to  its  possessions  abroad 
and  to  the  provinces  that  it  may  have  annexed  since  the  conclusion  of  the 
treaty.  For  that  purpose,  it  is  necessary  to  refer  to  the  convention  itself  and 
to  consider  whether  it  was  concluded  with  or  without  reservation  as  regards 
colonies,  possessions  or  annexed  provinces,  and  to  examine  the  form  of  the 
constitution  of  those  colonies  or  possessions  and  the  nature  of  their  union  with 
the  state  which  has  concluded  the  treaty. 

776.  Every  treaty  must  have  full  effect,  even  when  some  change 
takes  place  in  the  form  of  the  government  or  the  internal  constitu- 
tion of  the  state,  except  as  this  may  be  modified  by  rule  836. 

It  must  be  regarded  as  valid  with  respect  to  the  state  in  whose 
name  it  was  concluded,  so  long  as  the  international  personality  of 
that  state  subsists. 

777.  Treaties  legally  and  validly  concluded  by  the  sovereign 
of  the  state  transmit  their  obligations  upon  the  state,  actively  and 
passively,  to  whomsoever  succeeds  by  universal  title  to  the  rights 
of  sovereignty,  in  conformity  with  the  rules  which  govern  cessions 
and  annexations. 

778.  Treaties  concluded  to  regulate  matters  of  public  or  social 
interest  to  the  contracting  states  extend  their  effects  to  legal  rela- 
tions which  arose  before  their  conclusion,  save  in  the  case  of  an 
express  declaration  to  the  contrary. 

When,  however,  the  application  of  a  treaty  to  legal  facts  or 
relations  prior  to  its  conclusion  would  result  in  injury  to  or  diminu- 
tion of  private  rights  already  vested  in  individuals,  the  treaty  can- 
not apply  to  these  rights. 

This  rule  relates  to  the  retroactive  force  of  a  treaty,  and,  in  order  to  make  the 
principle  clear,  it  must  be  remarked  that  treaties  have  the  authority  of  law, 
even  as  to  their  effects  upon  the  rights  of  private  persons.    In  matters  of  public 


338  INTERNATIONAL  LAW   CODIFIED 

law,  the  respect  for  vested  private  rights  cannot  influence  the  appHcability 
or  effect  of  the  treaty.  Thus,  if  a  treaty  has  modified  the  rules  governing  the 
jurisdiction  of  the  courts  of  the  two  contracting  states,  or  the  execution  of 
foreign  judgments  in  the  respective  territories,  private  individuals  in  either 
state  could  not  claim  that  differences  arising  between  them  before  the  con- 
clusion of  the  treaty  ought  to  be  settled  by  the  application  of  the  rules  pre- 
viously in  force  relating  to  jurisdiction  and  the  execution  of  judgments.  In 
matters  of  pubhc  law  and  social  order,  rights  acquired  by  private  persons 
could  not  be  taken  into  account  to  defeat  or  modify  the  authority  of  the  new 
rules  sanctioned  by  the  treaty.  Should  the  treaty,  on  the  other  hand,  modify, 
for  example,  the  rules  relating  to  the  acquisition  and  loss  of  citizenship  in  the 
state,  the  rules  sanctioned  therein  would  not  be  applicable  to  persons  who  were 
already  citizens  of  either  of  the  countries.  The  same  thing  would  be  true  with 
respect  to  a  treaty  that  would  include  within  literary  copyright  the  right  to 
forbid  translation;  such  a  treaty  could  not  apply  to  translations  already  made 
before  its  conclusion.  See  Fiore:  Delle  disposizioni  generali  sulla  pubblica- 
zione  e  inierpretazione  delle  leggi  (Marghieri;  Unione  Tip.-Ed.  Tor.,  2d  ed., 
1914)  V.  I:  Sulla  irrelroatlivild  delle  leggi,  chap.  II,  par.  27  et  seq.;  De  la  irre- 
troaclividad  e  interpretacion  de  las  leyes  (Madrid,  1893);  and  ibid.,  De  la  re- 
troactividad  e  irretroactividad  de  las  leyes  de  procedimiento  en  los  juicios  civiles, 
p.  429. 

EFFECTS   OF   TREATIES   WITH   REGARD   TO    THIRD   PARTIES 

779.  A  treaty  can  establish,  modify,  extend  or  extinguish  rights 
only  between  the  states  which  concluded  it  as  contracting  parties; 
as  to  third  states,  not  parties  to  the  treaty,  it  must  be  considered 
as  res  inter  alios  acta. 

780.  When  two  or  more  parties  to  a  treaty  have  inserted  some 
clause  impairing  the  interests  of  a  third  power,  such  clause  must 
be  considered  inoperative  as  to  a  state  that  has  not  taken  part 
in  the  treaty,  even  in  the  absence  of  protest. 

781.  When,  in  a  treaty,  an  advantage  to  a  third  state  has  been 
provided  for,  such  stipulation  does  not  become  perfect  and  opera- 
tive unless  the  third  state  has  declared  its  intention  to  take  ad- 
vantage of  it,  or  has  in  fact  profited  thereby. 

782.  Non-acceptance  on  the  part  of  the  third  state  cannot  affect 
the  validity  of  the  treaty  unless  its  acceptance  constitutes  an 
integral  and  principal  part  of  the  agreement,  by  making  the  valid- 
ity of  the  treaty  conditional  upon  its  acceptance  by  the  third 
state. 

783.  No  stipulation  can  be  held  valid  and  operative  unless  it 
has  been  agreed  to  by  each  of  the  contracting  parties  in  its  own 
name.  When  one  of  them,  unknown  to  a  third  state,  has  promised 
something  for  the  third  state,  undertaking  to  obtain  its  consent, 


LEGAL  FORCE  AND  EXECUTION  OF  TREATIES       339 

that  party  is  bound  to  use  its  good  offices  with  the  said  power  to 
obtain  the  approval  of  the  clauses  which  concern  it;  but  it  would 
not  be  bound  to  do  anything,  if,  confident  of  fulfilling  its  undertaking 
by  the  employment  of  its  good  offices,  after  having  assumed  an 
engagement  in  the  name  of  a  third  power,  it  had  subsequently  been 
unsuccessful  in  obtaining  the  expected  adhesion,  notwithstanding 
the  employment  in  good  faith  of  all  means  to  that  end. 

EXECUTION  OF  TREATIES 

784.  International  treaties  must  be  held  to  be  contracted  in  good 
faith  and  executed  accordingly.  The  contracting  parties  are 
always  bound,  not  only  to  carry  out  what  they  have  expressly 
stipulated,  but  also  whatever  may  be  presumed  to  have  been 
within  their  common  intention,  considering  the  subject-matter  and 
nature  of  the  treaty. 

785.  Neither  party  should  be  allowed  to  vary  or  to  add  any 
condition  in  the  execution  of  the  treaty,  even  when  it  may  seem 
that  such  condition  is  advantageous  to  the  other  party. 

786.  International  custom  cannot  alter  or  modify  an  express 
stipulation;  but  as  to  anything  not  the  object  of  express  declara- 
tion and  of  a  formal  provision  of  the  treaty,  it  is  presumed  that  the 
parties  intended  to  comply  with  custom  in  the  matter  of  its  execu- 
tion. 

787.  It  must  be  held  a  fundamental  principle  of  the  law  relating 
to  treaties  that  none  of  the  signatory  parties  may  at  will  be  deemed 
excused  from  executing  it  in  good  faith,  in  all  its  parts,  owing  to 
changed  circumstances  or  to  a  possible  eventual  prejudice  to  its 
interests  arising  from  its  execution. 

In  principle,  it  must  be  observed  that  the  possible  injury  and  prejudice 
which  may  result  from  the  execution  of  a  treaty  could  not  constitute  a  suffi- 
cient ground  to  justify  a  refusal  to  execute  it  by  the  state  claiming  to  be  in- 
jured. In  matters  of  private  interest  and  in  civil  contracts  it  may  be  admitted 
that  an  injury  might,  within  certain  limits,  constitute  a  just  ground  for  sus- 
pending the  execution  of  a  contract  and  for  bringing  an  action  for  annul- 
ment. But,  in  international  relations,  if  a  state  could,  after  having  concluded 
a  treaty,  suspend  its  execution  on  its  own  authority,  alleging  possible  injury 
and  prejudice,  it  would  be  admitting  a  dangerous  pretext  for  disregarding  the 
faith  due  to  treaties,  based  on  their  inviolability. 

See  Fiore,  Trattato  di  Diritlo  internazionale  pubblico,  4th  ed.,  v.  2;  Inviolabi- 
lila  (lei  trattati,  §  10.30. 

There  may  be  exceptional  cases  in  which,  in  consequence  of  supervening 


340  INTERNATIONAL  LAW   CODIFIED 

events,  the  respect  of  the  rule  of  inviolability  of  treaties  might  endanger  the 
political  and  economic  Ufe  of  the  state.  Yet,  even  in  such  a  case,  we  believe 
that  the  state  cannot  alone  free  itself  from  observance  of  the  treaty,  but 
should  submit  its  case  to  a  tribunal  of  arbitration  or  to  a  conference. 

788.  Should  one  of  the  parties  declare  a  suspension  or  actually 
suspend  the  execution  of  a  treaty  which  it  had  subscribed,  the 
other  contracting  parties  would  also  be  justified  in  suspending  its 
execution.  Such  a  state  of  facts  could  only  temporarily  suspend 
the  execution  of  the  treaty,  but  would  not  imply  its  annulment  or 
abrogation  until  the  advisability  of  annulling  the  treaty  had  been 
agreed  upon  by  the  contracting  parties  themselves  as  a  result  of 
amicable  negotiations,  or  until  the  demand  of  the  party  requesting 
its  abrogation  had  been  recognized  as  well  founded  in  law  by  a 
tribunal  of  arbitration  or  a  conference,  after  duly  hearing  the  other 
party  which  insists  on  its  maintenance  and  execution. 

LAWFUL  MEANS   OF   ASSURING   THE   EXECUTION    OF   TREATIES 

789.  Parties  may,  by  express  undertakings,  guarantee  the  execu- 
tion of  obligations  contracted,  assuring  their  execution  through  real 
guaranties  or  means  lawful  according  to  international  law. 

790.  A  right  given  to  one  of  the  contracting  parties  to  occupy 
a  portion  of  the  territory  until  after  fulfillment  of  the  obligations 
contracted  must  be  considered  as  one  of  the  lawful  forms  of  real 
guaranty  to  assure  the  execution  of  a  treaty. 

It  is  also  permissible  to  furnish  security  to  insure  the  payment 
of  a  certain  sum  undertaken  to  be  paid,  or  to  provide  for  the  in- 
tervention of  a  third  power  as  guarantor. 

Other  means  of  security  may  also  be  adopted,  provided  they  are 
not  contrary  to  the  general  principles  of  international  law. 

791.  It  may  be  considered  lawful  for  the  parties  to  provide  for 
a  penalty  clause  in  case  of  non-fulfillment  of  the  obligation.  But 
matters  which  cannot  constitute  the  object  of  a  lawful  international 
convention  cannot  be  stipulated  as  a  penal  clause  in  case  of  non- 
execution. 

GUARANTY  OF  A  THIRD   POWER 

792.  A  third  state  cannot  be  held  as  guarantor  of  an  assumed 
obligation,  except  by  virtue  of  an  explicit,  certain  stipulation 
accepted  in  the  form  established  for  the  conclusion  of  treaties; 


LEGAL    FORCE    AND    EXECUTION    OF    TREATIES  341 

The  obligation  of  guaranty  cannot  be  inferred  from  the  simple 
fact  that  the  state  acted  as  mediator  in  the  negotiations. 

793.  If  the  guaranty  has  been  explicitly  assented  to  and  has 
not  been  limited  to  certain  specific  obligations  assumed  in  the 
treaty  it  should  be  regarded  as  given  and  accepted  for  the  fulfill- 
ment of  all  obligations  incurred  in  the  treaty. 

OBLIGATIONS   ARISING   OUT   OF   A    GUARANTY 

794.  A  state  guaranteeing  the  obligations  assumed  by  another 
state  in  a  treaty  is  bound,  when  so  required,  to  assist  in  compelling 
the  other  party  to  execute  the  treaty  through  means  permitted  by 
international  law.  It  is  not  bound  to  repair  any  damage  caused  to 
the  other  state  which  relied  upon  its  guaranty  if,  having  done 
everything  in  its  power,  without  prejudice  to  its  own  rights,  it 
failed  to  secure  the  proper  execution  of  the  treaty. 

795.  The  guaranteeing  state  is  not  bound  to  give  what  the 
original  debtor  state  has  promised  but  failed  to  give,  except  in  the 
case  of  payment  of  a  certain  sum  of  money  for  which  it  has  given 
security  by  express  declaration,  or  for  which  it  has  made  itself 
surety. 

796.  The  guaranteeing  state  is  not  permitted  to  use  the  coercive 
measures  allowed  by  international  law,  in  order  forcibly  to  compel 
both  parties  to  execute  the  treaty,  except  where  that  state  has  an 
actual  interest,  based  on  the  ground  that  non-execution  will  inflict 
a  real  and  effective  injury  upon  its  own  rights. 

INTERPRETATION    OF  TREATIES 

797.  Interpretation  of  a  treaty  is  necessary: 

(a)  When  the  words  used  in  drafting  the  stipulations  between 
the  parties  have  not  a  clearly  determined  meaning,  and  do  not, 
therefore,  express  a  clear  and  exact  concept. 

(b)  When  the  wording,  while  clear  in  itself,  does  not  render 
precisely  and  exactly  the  idea  of  the  parties. 

(c)  When  the  general  provisions  of  the  treaty  are  not  definitely 
applicable  to  a  particular  case, 

(d)  When  unexpect(;d  circumstances  give  rise  to  inconsistencies 
between  the  present  state  of  affairs  and  the  stipulations  of  the 


342  INTERNATIONAL    LAW    CODIFIED 

treaty,  or  between  the  provisions  of  two  treaties  concluded  be- 
tween the  same  parties. 

798.  Interpretation  may  be  grammatical  or  logical.  The  former 
may  be  necessary  to  determine  the  sense  of  obscure  or  badly 
drafted  expressions.  The  latter  serves  to  fix  precisely  the  con- 
cept and  extent  of  the  reciprocal  obligations  assumed  by  the  high 
contracting  parties. 

RULES  OF  GRAMMATICAL  INTERPRETATION 

799.  There  is  no  deed  to  interpret  that  which  does  not  require 
interpretation. 

800.  The  meaning  of  words  used  must  be  fixed  and  determined 
according  to  common  usage,  rather  than  according  to  elegant 
language  with  all  literary  niceties. 

801.  Every  fault  of  construction  or  syntax  must  be  eliminated, 
taking  into  account  what  precedes  and  what  follows. 

802.  A  word  susceptible  of  different  meanings  may  be  con- 
sidered as  used  sometimes  with  one  meaning,  sometimes  with 
another,  according  to  whether  the  meaning  coincides  with  its  use 
in  a  particular  clause. 

803.  Technical  expressions  used  in  a  treaty  should  be  under- 
stood in  their  technical,  rather  than  in  their  popular  sense. 

If,  however,  according  to  specialists,  technical  terms  or  words 
of  art  may  have  different  meanings,  one  need  not  adhere  strictly 
to  general  definitions,  but  the  words  used  should  be  understood 
in  the  sense  best  adapted  to  the  subject  to  which  they  refer. 

804.  There  need  be  no  subtle  discussion  on  the  true  meaning 
of  the  words  used  to  express  an  idea  when,  according  to  the  in- 
tention of  the  parties,  the  meaning  clearly  appears.  It  should  be 
considered  captious  cavil  to  adhere  to  the  strict  meaning  of  an  ex- 
pression in  order  to  elude  the  true  sense  of  the  words,  as  deduced 
from  the  intention  of  the  parties. 

Puffendorfif  relates  the  case  of  Tamerlane  who,  having  negotiated  the  sur- 
render of  a  city  and  promised  not  to  shed  blood,  caused  the  soldiers  of  the 
garrison  to  be  buried  alive.  Such  subtle  cavil  and  others  of  the  same  category 
must  be  considered  as  gross  and  wretched  subterfuges,  which  intensifies  the 
culpability  of  the  treachery. 

805.  Words  which  have  a  different  legal  meaning  in  each  of  the 
contracting  states  must  be  considered  as  used  in  the  sense  ascribed 


LEGAL    FORCE    AND    EXECUTION    OF   TREATIES  343 

to  them  in  the  state  which,  by  the  treaty,  undertakes  an  ob- 
ligation. 

806.  The  meaning  of  obscure  or  equivocal  expressions  must  be 
determined  so  as  to  make  them  agree  with  clear  and  unambiguous 
expressions  used  in  the  same  act  or  in  other  acts  concluded  be- 
tween the  same  parties. 

It  is  reasonable  to  presume  that  parties  which,  in  manifesting  their  will, 
have  left  some  uncertainty  as  to  the  meaning  of  the  words  used  to  express  it, 
have  employed  those  words  in  the  sense  deducible  clearly  and  without  ambi- 
guity from  another  agreement  between  them.  There  is  no  reason  why  it  should 
not  be  conceded  that  the  contracting  parties  have  probably  entertained  the 
same  thought  as  in  other  analogous  cases. 

RULES    OF   LOGICAL    INTERPRETATION 

807.  When  the  stipulation  does  not  present  any  ambiguity  it 
may  be  interpreted  so  as  to  establish  the  intention  of  the  parties 
and  to  fix  precisely  the  extent  of  their  respective  obligations. 

808.  The  substance  of  the  obligation  must  be  determined  by 
recalling  the  thought  and  intention  of  the  contracting  parties,  as 
appears  from  the  context  of  the  treaty,  rather  than  by  referring 
to  the  dead  letter  of  the  document  {in  fide  semper  autem  quid 
senseris,  non  quid  dixeris  cogitandum). 

809.  Yet,  the  state  which  has  clearly  assumed  an  obligation 
cannot  restrict  its  extent  by  invoking  its  unexpressed  intention. 

If  it  has  not  clearly  expressed  itself  the  clause  under  discussion 
should  not  be  interpreted  in  its  favor,  but  against  it,  for  having 
failed  clearly  to  express  the  obligation  it  intended  to  assume. 

Compare  L.  39,  Dig.  De  Pactis  (2,  XIV):  "Pactionem  obscuram,  vel  am- 
higuam,  venditori,  et  qui  locavit,  nocere,  in  quorum  fuit  potestate  legem  aperlius 
conscribere."  Applying  the  proposed  rule,  it  must  be  affirmed  in  principle  that, 
in  order  to  determine  the  substance  of  an  obligation,  the  meaning  deducible 
from  the  words  used  by  the  one  assuming  an  undertaking  or  obligation  must 
be  considered  as  decisive.  It  is  to  be  presumed,  in  fact,  that  whoever  prom- 
ises voluntarily  to  do  or  to  furnish  something  should  take  the  greatest  care  to 
use  the  most  precise  terms  to  express  clearly  what  he  promises.  Therefore, 
should  expressions  used  by  an  obligor  present  some  ambiguity,  it  should  be 
resolved  by  adhering  to  the  sense  of  the  words  used  in  the  promise,  which 
must  be  considered  as  accepted  by  the  promisee  in  the  terms  used  by  the 
promisor.  We  must,  therefore,  consider  as  true  and  absolute  against  the 
promisor  what  he  has  sufficiently  declared. 

810.  None  of  the  contracting  parties  may  so  interpret  a  stipula- 
tion as  to  draw  undue  advantage  from  it.     The  substance  and  ex- 


344  INTERNATIONAL   LAW   CODIFIED 

tent  of  the  assumed  obligation  must  be  understood  in  the  sense 
most  equitable  and  liberal  to  the  respective  interests  of  the  con- 
tracting parties. 

811.  Clauses  which  are  not  capable  of  execution  because  they 
imply  either  a  violation  of  principles  of  "common"  law  or  a 
violation  of  general  interests  or  an  impracticable  result,  must  be 
regarded  as  non-existing. 

Treaty  stipulations  must  be  understood  in  the  most  equitable 
sense,  and  always  so  as  to  produce  some  useful  effect  and  to  avoid 
any  derogation  from  "common"  international  law  or  the  public 
law  of  the  contracting  parties. 

812.  The  intention  of  the  parties,  when  it  comes  to  determine 
the  substance  and  extent  of  each  provision,  must  be  deduced 
from  the  treaty  as  a  whole,  considered  as  indivisible  and  homo- 
geneous. 

813.  We  should  avoid  an  interpretation  which  leads  to  absurd- 
ity; or  one  which  renders  the  treaty  null  and  void;  or  one  which 
would  lead  to  an  invidious  result,  by  making  one  of  the  contracting 
parties  bear  all  of  the  burdens  without  any  reciprocal  obligations 
by  the  other. 

814.  The  spirit  of  every  provision  must  be  sought  in  its  moving 
reasons.  Yet,  the  discussions  relating  to  the  stipulations  of  the 
treaty,  as  found  in  the  proceedings  and  preparatory  work  leading 
to  its  conclusion,  cannot  serve  to  interpret  the  treaty  so  as  to  give 
it  a  meaning  substantially  different  from  its  express  stipulations, 
save  when  the  negotiators  themselves  have  drawn  up  and  signed 
a  protocol  to  determine  the  legal  meaning  and  value  of  the  agree- 
ment. 

We  may  observe,  to  explain  our  rule,  that  what  has  been  said  by  the  pleni- 
potentiaries in  the  course  of  the  negotiations  may  be  taken  into  considera- 
tion to  explain  the  scope  of  a  particular  stipulation  when  it  does  not  fully 
appear  from  the  wording  of  the  act.  Nevertheless,  it  cannot  be  admitted 
that  what  the  negotiators  may  have  said  hinc  el  inde  and  their  reserved  and 
unexpressed  intentions  may  serve  to  weaken  the  juridical  force  of  the  written 
agreement.  Supposing  that  the  agreement  be  clear,  express  and  not  ambig- 
uous, its  force  could  not  be  weakened  by  the  contracting  parties,  by  relying 
upon  verbal  statements  of  the  negotiators  and  on  intentions  in  harmony  with 
secret  instructions.  These  secret  intentions,  as  well  as  equivocal  expressions 
used  in  the  course  of  the  negotiations,  cannot  serve  to  alter  the  legal  force  or 
import  of  a  written  document,  properly  drawn  up  and  signed. 


LEGAL   FORCE   AND    EXECUTION    OF   TREATIES  345 

BROAD   OR   RESTRICTIVE    INTERPRETATION 

815.  On  principle,  it  is  not  proper  to  give  to  a  treaty  a  broad 
interpretation  by  application  of  the  rules  relating  to  the  interpre- 
tation of  statutes;  it  is  necessary  to  conform  to  the  intention  of 
the  contracting  parties  and  to  consider  every  provision  applicable 
to  the  case  which  constituted  the  object  of  the  agreement,  apart 
from  unforeseen  cases. 

816.  It  is  not  proper  to  proceed  by  analogy  to  give  a  broad  in- 
terpretation to  a  provision  in  itself  clear  and  explicit;  it  should,  in 
fact,  be  considered  as  applying  only  to  that  which  constituted  the 
subject-matter  of  the  treaty. 

Analogy  may  be  invoked  when  the  provision  lacks  clearness  and 
precision,  and  is,  therefore,  ambiguous.  Ambiguity  may  be  elim- 
inated by  referring  to  the  stipulations  of  another  treaty  relating  to 
analogous  matters  between  the  same  parties. 

817.  Any  provision  tending  to  limit  the  free  exercise  of  the 
rights  of  either  of  the  two  contracting  parties  must  be  understootl 
in  the  most  restrictive  sense,  like  any  other  impairment  of  the 
liberty  of  persons  under  "common"  law.  Provisions  entailing 
a  burden  must  likewise  be  understood  in  a  restrictive  sense,  when 
the  words  used  do  not  clearly  express  what  the  party  has  engaged 
to  undertake  or  do. 

This  rule  is  founded  on  the  aphorism:  Odia  restringi,  favores  convenit  am- 
pliari,  which  itself  is  based  on  the  presumption  that  a  party  who  has  ac- 
cepted a  restriction  upon  his  natural  liberty  has  intended  to  sacrifice  as  little 
as  possible  of  that  liberty,  and  to  assume  the  least  burdensome  obligation, 
since  the  party  in  whose  favor  he  has  bound  himself  has  not  required  of  him 
an  explicit  and  precise  declaration  determining  the  extent  of  his  obligation. 

LEGAL   INTERPRETATION    OF   A   TREATY 

818.  It  is  incumbent  upon  parties  which  have  concluded  a 
treaty  to  adjust  differences  and  doubts  which  arise  as  to  its  import. 
To  this  end,  they  may  subscribe  a  declaration  or  protocol,  which 
is  then  regarded  as  an  integral  part  of  the  treaty. 

819.  The  interpretation  of  the  doubtful  clauses  of  a  treaty, 
made  by  declaration  or  protocol,  will  be  regarded  as  legal  and 
authentic  whenever  they  fulfill  the  requirements  for  the  validity 
of  a  convention  between  two  states. 


346  INTERNATIONAL   LAW    CODIFIED 

820.  Whenever  the  contracting  parties  are  unable  to  agree  as  to 
the  interpretation  of  a  treaty,  the  difficulty  should  be  adjusted 
like  any  dispute  involving  individual  interests  between  two  states, 
and  its  interpretation  should  be  submitted  to  the  decision  of  a 
tribunal  of  arbitration. 

821.  The  treaty,  considered  as  a  statute,  may  be  interpreted 
by  the  courts  when  it  is  necessary  to  apply  it  in  the  interest  of 
private  persons.  This  interpretation,  however,  has  merely  the 
same  effect  as  the  interpretation  of  any  other  legislative  provision. 
Therefore,  it  is  only  of  value  in  the  state  in  which  the  court  sits. 
It  has  no  influence  on  the  interpretation  of  the  treaty  as  a  politi- 
cal act,  save  where  expressly  or  tacitly  accepted  by  the  contracting 
parties. 

In  order  fully  to  determine  the  import  of  the  proposed  rules  it  may  be  ob- 
served that  any  treaty,  in  so  far  as  it  establishes  the  respective  rights  of  the 
contracting  parties  and  the  "common"  law  of  their  relations  in  regard  to 
the  subject-matter  of  their  convention,  is  a  political  act.  Therefore,  since  the 
interpretation  of  such  a  convention  always  involves  the  determination  of  the 
respective  sovereign  rights,  it  is  evident  that,  in  that  respect,  the  treaty  can 
be  interpreted  only  by  the  contracting  parties,  and  that,  for  the  validity  of 
the  act,  it  is  essential  that  the  protocol  of  interpretation  shall  present  the  same 
intrinsic  and  extrinsic  characteristics  as  any  other  convention  between  two 
states. 

The  treaty,  however,  may  be  considered  as  the  law  of  the  state 
promulgating  it,  and  the  courts  that  have  to  apply  it  within  the  domain  of 
private  and  of  public  municipal  law  may  interpret  it  as  they  interpret  any 
statute  adduced  in  private  litigation. 

Compare:  French  Court  of  Cassation,  June  30,  1884  (Journal  du  droit  in- 
ternational prive,  1885,  p.  307);  January  6,  1873  (Dalloz,  1873,  I,  117);  Jan- 
uary 6,  1861  (Journal  du  Palais,  1861,  1149);  Court  of  Cassation  of  Florence, 
July  3,  1874  (Bettini,  XXVI,  I,  866);  Court  of  Cassation  of  Rome,  June  12, 
1895  (La  Legge,  XXVth  year,  §  2,  p.  895). 

[By  article  VI  of  the  Constitution  of  the  United  States  "all  treaties  made  or 
which  shall  be  made  under  the  authority  of  the  United  States  shall  be  the 
supreme  law  of  the  land;  and  the  judges  in  every  state  shall  be  bound  therebj', 
anything  in  the  constitution  or  laws  of  any  state  to  the  contrary  notwith- 
standing' ' — Transl.] 

DISPUTES   RELATING   TO   THE   EXECUTION   OF   A    TREATY 

822.  Every  dispute  relating  to  the  execution  of  a  treaty  con- 
cerning special  interests  concluded  between  two  or  more  states 
must  be  decided  in  accordance  with  the  rules  governing  the  so- 
lution of  questions  of  a  political  nature,  by  reference  to  the  applica- 
ble principles  of  international  law. 


LEGAL  FORCE  AND  EXECUTION  OF  TREATIES       347 

823.  It  is  incumbent  on  states  concluding  a  treaty  to  make  a 
stipulation  of  a  reciprocal  obligation  to  refer  to  a  tribunal  of  arbi- 
tration any  difficulties  arising  out  of  it,  and  to  draw  up,  as  the  case 
may  be,  a  comproinis  for  the  submission  of  a  specific  case  to  ar- 
bitrators. 

824.  The  parties  are  bound  to  observe  any  rules  laid  down  in 
the  treaty  concerning  the  constitution  of  the  arbitral  tribunal 
and  the  procedure  to  be  followed.  If  no  rules  are  provided,  and 
yet  the  parties  have  agreed  to  submit  differences  to  arbitral  juris- 
diction, they  shall  be  considered  as  bound  to  observe  the  rules  of 
"common  law,"  both  as  regards  the  constitution  of  the  tribunal 
and  arbitral  procedure. 

825.  The  obligation  to  refer  every  difficulty  relating  to  the 
execution  of  a  treaty  to  arbitrators  must  be  considered  as  based 
on  the  general  principles  of  law,  even  when  not  expressly  stipulated 
in  the  treaty.  Consequently,  in  case  of  a  controversy  as  to  the 
execution  of  a  treaty  and  of  failure  of  diplomatic  negotiations  to 
adjust  it,  one  of  the  parties  always  has  the  right  to  notify  the  other 
party  of  its  intention  to  refer  the  question  to  the  decision  of  a 
tribunal  of  arbitration,  and  if  the  latter  declines  to  agree  to  the 
proposition,  the  notifying  party  may  hold  the  other  responsible 
for  all  the  consequences  which  may  result  from  the  unavoidable 
severance  of  friendly  relations  between  the  two  states. 

826.  Every  difficulty  relating  to  the  execution  of  a  treaty  of 

general  interest  must  be  submitted  to  the  decision  of  a  Conference 

to  be  established  and  to  operate  in  conformity  with  the  rules  laid 

down  in  the  following  book. 

We  believe  it  essential  to  distinguish  between  treaties  of  general  interest 
and  those  of  special  interest  to  a  few  states,  because  we  do  not  believe  they 
can  be  subjected  to  the  same  rules.  The  distinction  must  be  based  on  the 
subject-matter  and  purpose  of  the  agreements.  A  treaty  concluded  between 
two  or  more  states  to  regulate  their  special  concerns,  as  for  example,  interna- 
tional literary  and  artistic  copyright,  international  postal  service,  extradition 
of  criminals,  customs  relations  and  maritime  service,  cannot  be  compared 
with  a  treaty  relating  to  the  navigation  of  international  rivers,  the  suppression 
of  the  slave  trade  or  to  any  other  agreement  concerning  common  interests. 
We  concede  that  diflicullies  relating  to  the  execution  of  either  class  of  treatie»s 
should  be  adjusted  through  peaceful  means;  but,  in  our  opinion,  those  relating 
to  treaties  of  general  interest,  like  those  concerning  treaties  of  particular  in- 
terest, may  be  referred  to  arbitrators.  Yet,  with  respect  to  the  former  class 
of  treaties  a  certain  7)eaceful  collective  intervention  cannot  be  excluded;  hence 
we  hold  that  difficulties  relating  thereto  ought  to  be  referred  to  the  Confer- 
ence, whose  organization  and  operation  will  be  set  forth  below. 


TITLE  IV 
ABROGATION  AND  ANNULMENT  OF  TREATIES 

GENERAL    PRINCIPLES 

827.  Every  treaty  may  be  abrogated,  either  in  whole  or  in  part, 
by  agreement  of  the  states  concluding  it,  or  by  a  renunciation 
of  its  benefits  on  the  part  of  the  state  profiting  by  it. 

There  are  numerous  instances  of  conventional  abrogation  of  obligations  aris- 
ing out  of  a  treaty.  The  provision  of  article  5  of  the  treaty  concluded  at  Prague 
between  Prussia  and  Austria,  August  23,  1866,  was  abrogated  by  the  treaty 
signed  between  the  same  states  at  Vienna,  October  11,  1878.  Under  that 
article  of  the  Treaty  of  Prague,  Austria  renounced  all  the  rights  that  were 
granted  her  over  the  duchies  of  Schleswig  and  Holstein  by  the  Treaty  of  Vienna 
of  October  30,  1864,  and  transferred  her  rights  to  Prussia,  reserving  to  the 
people  of  North  Schleswig  the  right  to  unite  with  Denmark,  if  by  a  vote  freely 
expressed,  they  manifested  this  desire.  Owing  to  the  abrogation  of  that 
article  by  the  agreement  of  1878  the  plebiscite  was  not  required. 

828.  None  of  the  contracting  parties  may  on  its  own  authority 
consider  the  treaty  as  abrogated  either  as  a  whole  or  in  part,  or 
suspend  its  execution,  but  must  deem  itself  bound  to  observe  it 
in  all  its  parts  until  abrogation  has  been  legally  pronounced  by  a 
competent  tribunal.  If,  however,  one  of  the  parties  should  suspend 
the  execution  of  the  treaty  without  evoking  any  protest  from  in- 
terested states,  from  which  acquiescence  may  be  presumed,  the 
treaty  ought  to  be  considered  as  annulled  by  reciprocal  tacit 
consent. 

829.  A  party  which  has  sufficient  grounds  to  consider  the  abroga- 
tion of  a  treaty  as  justified,  may  suspend  its  execution  and 
denounce  it,  notifying  the  interested  parties,  through  diplomatic 
channels,  of  its  asserted  right  to  terminate  the  treaty.  The  abro- 
gation, however,  shall  not  be  considered  as  having  legally  taken 
place  except  through  a  formal  agreement  of  the  interested  parties; 
or  the  decision  of  a  competent  court. 

After  the  fall  of  the  Second  Empire,  the  Russian  Government  in  October, 
1870,  informed  the  signatory  powers  of  the  treaty  of  Paris  of  1856,  that, 

348 


ABROGATION    AND    ANNULMENT    OF   TREATIES  349 

owing  to  the  violation  of  the  stipulations  relating  to  the  neutrality  of  the  Black 
Sea,  Russia  considered  itself  released  from  the  restrictions  upon  the  right  to 
have  a  fleet  in  that  sea,  and  invited  them  to  meet  in  conference  in  order  to 
amend  the  clauses  of  the  treaty. 

Nevertheless,  the  abrogation  of  those  stipulations  could  not  be  deemed  to 
have  been  legallj'  effected  until,  as  a  result  of  the  London  Conference,  the 
treaty  of  March  13,  1871  abrogated  articles  11,  13  and  14  of  the  Treaty  of 
Paris. 

830.  Unilateral  denunciation  may  be  effectual  in  annulling  a 
treaty  only  when  the  right  is  recognized  in  the  treaty  and  it  is 
carried  out  in  the  terms  and  cases  provided  therein  and  in  the 
forms  established  by  "common"  law. 

JUDICIAL  PROCEEDINGS  FOR  THE  ABROGATION  OF  A  TREATY 

831.  The  abrogation  of  a  treaty  ought  to  be  pronounced  by  a 
competent  court,  at  the  formal  instance  of  a  signatory  party. 

832.  The  right  of  a  party  to  request  the  annulment  of  a  treaty 
must  be  considered  as  well  founded,  when  it  is  proved  and  recog- 
nized that  the  treaty  lacks  one  of  the  essential  conditions  required 
by  international  law  for  its  validity. 

Compare  rules  747  et  seq. 

833.  Prejudice  to  the  interests  of  a  signatory  power  arising  out  of 
the  execution  of  a  treaty  cannot  be  deemed  a  sufficient  ground  to 
request  its  annulment. 

Even  when  a  stat«;  has  imprudently  concluded  a  treaty  without  full  knowl- 
edge of  the  case,  it  must  be  bound  to  bear  the  consequences  and  is  not  war- 
ranted in  requesting  its  annulment  on  the  ground  of  prejudice  to  its  interests. 

Even  if,  owing  to  a  change  of  circumstances,  the  state  suffers  grave  injury 
by  reason  of  the  execution  of  the  treatj',  it  cannot  on  that  ground  refuse  to 
execute  it.  If  it  were  ever  to  be  admitted  that  a  state  could  cancel  its  obliga- 
tions when  it  considered  the  treaty  as  disadvantageous,  what  would  become 
of  the  good  faith  due  to  agreements  and  the  inviolability  of  international 
treaties?  Private  law  has  admitted  the  rescission  of  contracts  on  the  ground 
of  injury  because  they  involve  only  private  interests,  whereas  treaties  involve 
public  and  international  interests  and  the  maintenance  of  their  inviolability 
constitutes  the  highest  international  interest. 

Compare  rule  787. 

834.  No  state  may  base  its  right  to  regard  a  treaty  as  annulled 
on  the  ground  that  circumstances  have  so  changed  that,  had  they 
existed  at  the  time  the  treaty  was  concluded,  they  would  have 
constituted  a  serious  imp(>(limont  to  the  giving  of  its  consent,  es- 
sential to  the  conclusion  ot  tin-  agreement. 


350  INTERNATIONAL   LAW   CODIFIED 

It  is  contended  that  every  convention  must  be  subordinated  to  the  clause 
rebus  sic  stantibus.  Admitting  this  conception  in  a  general  and  indefinite 
sense,  it  would  follow  that  the  termination  of  a  treaty  could  be  brought  about 
by  the  unilateral  conclusions  of  one  of  the  parties  as  to  unexpected  changes  in 
the  state  of  fact  existing  at  the  time  the  treaty  was  concluded.  In  fact,  by 
accepting  the  rule  without  reservation,  each  of  the  contracting  parties  would  be 
considered  as  warranted  in  freeing  itself  from  its  obhgations  by  alleging  a  change 
of  the  state  of  affairs  existing  at  the  time  when  it  had  decided  to  bind  itself. 
It  may  be  admitted  that  a  change  in  such  state  of  affairs  might  constitute  a 
sufficient  motive  for  requesting  the  annulment  of  the  treaty  by  a  competent 
court,  leaving  it  to  that  court  to  decide  whether,  considering  the  serious 
prejudice  likely  to  arise  from  the  fulfillment  of  the  obligations  of  the  treaty,  it 
should  be  revoked  as  inoperative  by  reason  of  changed  circumstances.  But, 
so  long  as  the  court  has  not  passed  upon  the  request  for  annulment  presented 
by  the  interested  party,  the  rule  of  inviolability  must  prevail  absolutely. , 

Compare  the  protocol  of  January  17,  1871,  signed  by  the  plenipotentiaries 
at  the  conference  of  London  (Martens,  Nouv.  recueil  general,  XVIII,  p.  278). 

835.  When  a  treaty,  however,  has  been  concluded  with  a  view 
to  conditions  which  afterwards  come  to  be  materially  changed,  so 
that  the  object  of  the  convention  may  be  considered  as  having 
completely  disappeared,  the  treaty  ought  to  be  annulled  by  a 
competent  authority,  after  establishing  the  absence  of  any  reason 
for  the  continuance  of  the  obligation. 

This  rule  is  based  on  the  just  view  that  when  a  state  of  facts  which  con- 
stituted the  principal  and  substantial  object  of  an  agreement  happens  later 
to  be  completely  changed,  the  treaty,  although  valid  at  the  time  of  its  con- 
clusion, subsequently  loses  its  raison  d'etre,  since  it  must  be  considered  as  lack- 
ing in  object  and  in  basic  reason.  Therefore,  the  idea  of  this  rule  is  quite 
different  from  that  on  which  the  preceding  rule  is  based.  In  fact,  assuming 
that  the  treaty  is  concluded  to  regulate  a  certain  predetermined  condition, 
which  constituted  the  principal  and  substantial  object  of  the  agreement,  it  is 
reasonable  to  admit  that  when  the  continuance  of  the  condition  assumes  the 
actual  character  of  a  tacit  sine  qud  nan,  the  absence  or  removal  of  the  con- 
dition renders  the  agreement  without  object,  and  the  treaty,  consequently, 
without  legal  effect. 

Compare  Rule  874. 

836.  A  change  in  the  political  constitution  of  either  of  the  con- 
tracting states,  cannot  ipso  facto  be  deemed  a  sufficient  ground  for 
annulling  a  treaty,  except  when  its  execution  may  be  considered 
incompatible  with  the  new  constitution  of  the  state. 

Changes  in  the  political  constitution  of  a  state  do  not  affect  its  personality 
(compare  Rules  101,  183,  776).  Therefore,  the  obligations  assumed  by  the 
state  must  subsist  in  the  same  way  as  do  the  rights  which  it  possesses. 

837.  When,  by  reason  of  a  change  in  the  political  constitu- 
tion of  a  state,  certain  clauses  of  a  treaty  become  impossible  of 


ABROGATION    AND   ANNULMENT    OF   TREATIES  351 

fulfillment,  their  abrogation  could  be  effected  by  agreement  be- 
tween the  parties  because  of  established  impossibility  of  fulfill- 
ment, if  it  were  desired  to  continue  in  force  the  remainder  of  the 
treaty. 

In  the  absence  of  such  an  agreement,  the  interested  party  could 
suspend  the  execution  of  the  treaty,  which,  since  it  must  be  re- 
garded as  an  indivisible  whole,  could  not  be  fully  executed,  and  if 
the  other  contracting  party  does  not  consent,  the  dispute  arising 
out  of  its  suspension  ought  to  be  referred  to  a  tribunal  of  arbitra- 
tion, which  should  first  of  all  decide  whether  in  effect  the  fulfillment 
of  all  the  obligations  assumed  under  the  treaty  is  incompatible  with 
the  new  political  constitution  of  the  state,  and  then  determine  the 
effects  of  the  inconsistency,  that  is,  whether  the  partial  annulment 
of  the  incompatible  agreement  should  be  decreed,  while  maintain- 
ing the  rest  of  the  treaty  in  force,  or  whether  the  entire  treaty 
should  be  held  to  be  terminated. 

838.  When,  in  order  to  carry  a  treaty  into  effect,  one  of  the 
contracting  parties  is  required  to  take  certain  legislative  action 
and  the  government  of  the  state  so  obligated  has  failed  to  provide 
or  was  unable  to  obtain  from  the  legislature  the  necessary  legisla- 
tion to  carry  out  its  obligations  under  the  treaty,  the  other  con- 
tracting party  has  the  right  to  suspend  the  execution  of  the  treaty 
until  the  legislative  measures  have  been  enacted,  and  may  move 
the  annulment  of  the  treaty  for  non-execution  by  the  other  state. 

In  such  a  case,  the  international  responsibility  of  the  state  which 
has  assumed  obligations  it  could  not  meet,  remains  complete. 

Except  where  the  impossibihty  of  execution  arises  out  of  the  poHtical  con- 
stitution of  the  state,  when  rule  763  must  be  appHed,  the  enactment  of  legis- 
lation required  for  the  execution  of  a  treaty,  which  the  government  has  under- 
taken to  enact  (when  it  has  not  clearly  conditioned  its  obligations  under  the 
treaty  to  the  anticipated  legislation,  so  as  to  make  the  legislation  a  suspensive 
condition),  must  be  deemed  a  matter  of  municipal  law,  that  can  have  no  in- 
fluence whatever  on  the  legal  force  of  the  treaty  as  an  international  obligation 
of  the  state.  Therefore,  its  responsibility  always  exists,  owing  to  the  fact  that 
it  has  assumed  an  obligation  without  being  certain  of  overcoming  the  ob- 
stacles necessary  to  carry  it  into  effect. 

839.  If  a  treaty  concluded  between  two  or  more  states  should 
be  incompatible  with  another  treaty  concluded  by  one  of  the  con- 
tracting parties  with  a  third  power,  the  latter  could  demand  of  its 
co-contractor  the  abrogation  of  the  later  treaty,  which  would  im- 
pair rights  previously  acquired. 


352  INTERNATIONAL   LAW    CODIFIED 

When  the  parties  are  unable  to  agree,  the  difficulty  ought  to  be 
submitted  to  the  judgment  of  a  tribunal  of  arbitration,  and  if  that 
tribunal  should  recognize  the  complaint  of  the  third  power  as  well 
founded  it  should  decree  the  later  treaty  to  be  inoperative,  so  far 
as  that  power  is  concerned.  This  would  give  rise  to  the  responsi- 
bility of  the  state  in  its  relations  with  the  other  contracting  party 
for  having  undertaken  an  obligation  that  it  certainly  knew  it 
could  not  assume.  It  would  be  necessary  then  to  apply  the  rules 
relating  to  the  international  responsibility  of  the  state,  which  by 
its  own  act  has  violated  the  rights  of  others. 

In  order  to  explain  this  rule  fully,  it  should  be  recalled  that  a  violation  of  the 
rights  of  others  cannot  law-fully  constitute  the  object  of  an  obligation.  Thus, 
in  the  relations  of  the  state  obhgated  to  the  third  power,  if  the  latter  wishes 
to  maintain  intact  all  rights  previously  acquired,  the  treaty  should  be  declared 
null  and  void  in  order  to  maintain  undisturbed  previously  vested  rights.  But, 
in  the  relations  of  that  state  with  the  other  parties,  the  treaty  could  subsist 
not-nathstanding  the  opposition  of  the  third  power,  for  the  reason  that  the 
prior  treaty  with  the  third  power  must  be  deemed  res  inter  alios  acta  with 
respect  to  the  other  contracting  parties. 

The  case  would  be  quite  different,  should  the  treaty  imply  in  itself  a  viola- 
tion of  the  rights  of  a  third  power  according  to  international  law.  In  such  case, 
the  treaty  would  be  invalid  as  to  all  the  parties,  owing  to  the  fact  that  the  vio- 
lation of  the  rights  of  third  parties  cannot  lawfully  be  the  subject-matter  of  a 
convention. 

Let  us  suppose,  for  example,  that  a  treaty  for  a  customs  union  was  con- 
cluded between  states  A,  B,  C  and  D;  that  state  B  had  previously  concluded 
another  customs  treaty  with  state  X,  and  that  the  obligations  it  has  assumed 
in  the  treaty  for  a  customs  union  imply  a  violation  of  the  rights  already  ac- 
quired by  state  X.  In  that  circumstance,  the  treaty  for  a  customs  union  would 
subsist  with  respect  to  states  A,  C  and  D,  and  could  be  declared  inoperative 
only  with  respect  to  state  B,  for  which  state  the  violation  of  the  rights  already 
acquired  by  state  X  under  the  previous  treaty,  could  not  constitute  the  lawful 
subject-matter  of  a  convention.  The  result  would  be  that  state  B  could  not 
be  a  member  of  the  customs  union,  and  would  incur  international  responsi- 
biUty  towards  states  A,  C  and  D,  in  case  the  customs  union  concluded  be- 
tween them  and  State  B  had  provided  for  pecuniary  benefits. 


TERMINATION  AND  RENEWAL  OF  TREATIES 

840.  When,  in  a  treaty,  it  has  been  formally  agreed  that  at  the 
expiration  of  the  stated  term,  the  treaty  will  be  deemed  to  con- 
tinue from  year  to  year,  or  for  a  longer  period,  if  either  of  the 
parties  should  fail  to  declare  its  intention  to  terminate  it,  the 
treaty  must  be  considered  in  force  until  officially  denounced  within 
the  period  and  according  to  the  forms  stipulated. 


ABROGATION    AND   ANNULMENT   OF  TREATIES  353 

841.  The  party  desiring  to  exercise  its  right  to  denounce 
a  treaty  must  do  so  through  diplomatic  channels  within  the 
period  agreed  upon.  The  other  party  may  similarly  denounce  it. 
But,  even  in  the  absence  of  such  formality,  the  treaty  would  cease 
to  be  in  force  by  reason  of  the  act  of  denunciation  legally  notified. 

842.  If,  in  the  treaty,  an  obligatory  term  has  been  stipulated, 
without  a  clause  providing  for  tacit  termination  in  default  of  de- 
nunciation, and  should  the  parties,  after  the  contractual  period 
has  expired,  continue  reciprocally  to  observe  their  obligations,  the 
treaty  should  be  considered  as  tacitly  renewed,  when  the  reciprocal 
observance  of  the  treat}"  is  proved  in  a  formal,  explicit  and  un- 
equivocal manner,  and  is  such  as  to  establish  clearly  the  reciprocal 
intention  of  maintaining  the  treaty  in  force  after  the  expiration  of 
the  contractual  period. 

843.  The  intention  of  the  contracting  parties  to  maintain  the 
treaty  in  force  after  the  expiration  of  the  contractual  period  cannot 
be  considered  to  arise  from  the  observance  of  certain  rules  of 
"common"  law,  which  happened,  however,  to  be  recognized  in  the 
treaty. 

Compare  the  case  discussed  before  the  French  Court  of  Cassation  in  con- 
nection with  the  tacit  renewal  of  consular  conventions  between  France  and 
the  United  States  and  the  motion  of  Public  Prosecutor  Dupin,  Cass.,  July  24, 
1861  (Journal  du  Palms,  1861,  p.  1149). 

EXPIR.\TION    OF   TREATIES 

844.  Treaties  expire  legality: 

(a)  By  reciprocal  consent  of  the  contracting  parties; 
(6)  By  performance  of  the  obligation  contemplated; 

(c)  By  the  expiration  of  the  term  fixed  in  the  treaty,  when  not 
continued  by  the  parties; 

(d)  By  the  express  renunciation  of  the  state  which  is  alone  in- 
terested in  maintaining  the  treaty  in  force; 

(e)  By  the  fulfillment  of  a  condition  subsequent; 

(/)  By  the  complete  disappearance,  fortuitous  and  nonculpable, 
of  the  circumstances  which  constituted  the  object  of  the  con- 
vention. 

845.  All  treaties  do  not  expire  ipso  jure  ipsoque  facto,  by  reason 
of  war  between  the  contracting  states,  although  they  cease  to  be 
operative.     All  conventions  between  the  two  states,  however  in- 


354  INTERNATIONAL  LAW   CODIFIED 

compatible  with  a  state  of  war,  must  be  deemed  suspended  ipso 
jure  ipsoquc  facto  when  war  breaks  out. 

The  principle  maintained  by  some  publicists  that,  unless  there  is  a  formal 
stipulation  to  the  contrary,  treaties  expire  in  consequence  of  a  declaration  of 
war  which  suspends  and  destroys  all  their  effects  (see  Calvo,  Droit  internal., 
4th  ed.,  §  362)  does  not  seem  to  us  consistent  with  the  principles  of  modern  law, 
which  tend  to  restrict  the  effects  of  war  to  the  relations  between  state  and 
state.  All  treaties  certainly  cannot  be  considered  as  utterly  extinguished  on 
account  of  war. 

Compare:  Rule  859,  and  Fiore,  Tratlato  di  dirilto  internazionale  pubblico, 
4th  ed.,  V.  3.  .  .  . 


TITLE  V 
SPECIAL  TREATIES 

846.  Special  treaties  may  be  as  numerous  as  are  the  matters 
that  may  form  the  subject  of  international  relations  and  of  the 
agreement  of  states  in  matters  of  reciprocal  interest. 

It  seems  unnecessary  to  classify  treaties  and  we  may  refer  to  our  work: 
Diritto  mternazionale  pubblico,  v.  2,  §  1008.  At  the  present  time,  especially, 
when  international  relations  between  states  have  considerably  extended  and 
the  necessity  to  regulate  them  through  conventions  and  treaties  has  conse- 
quently increased,  it  may  be  said  with  reason  that  the  enumeration  would  be 
long,  and  it  does  not  seem  to  us  necessary  to  make  it  here. 

847.  Every  treaty  should  be  characterized  by  its  object  and  con- 
tent, rather  than  by  the  name  chosen  by  the  parties. 

This  rule  is  based  on  the  wise  maxim :  plus  valet  quod  agilur  quam  quod  simU' 
late  condpilur.  It  may  happen  that  two  states  have,  for  example,  denominated 
as  a  treaty  of  customs  union  a  convention  concluded  to  regulate  trade.  Since 
the  stipulations  of  the  treaty  show  that  the  convention  has  not  the  nature, 
characteristics  and  conditions  of  a  treaty  of  customs  union,  it  cannot  be  con- 
sidered such  merely  because  the  parties  have  so  named  it.  If  it  were  proved 
that  the  convention  was  substantially  a  treaty  of  commerce,  it  would  be 
operative  as  such  with  respect  to  other  states  parties  to  a  treaty  of  commerce, 
should  they  be  entitled  to  the  treatment  of  the  most  favored  nation. 

Sometimes,  also,  the  title  "treaty  of  commerce"  is  given  to  a  convention 
which,  besides  stipulations  relating  to  trade,  contains  clauses  concerning 
literary  copyright  or  patent  and  trade-mark  protection,  the  institution  of  con- 
sulates and  the  extradition  of  criminals.  It  is  the  subject-matter  and  not  the 
name  of  a  treaty  which  controls  its  functions,  operation  and  status. 

848.  A  special  treaty  must  be  judged,  executed  and  interpreted, 
not  only  in  accordance  with  the  general  rules  governing  all  treaties, 
but  also  in  conformity  with  those  which  relate  to  its  special  na- 
ture and  particular  subject. 

TREATIES  OF   CESSION 

849.  A  treaty  of  cession  is  a  treaty  by  which  a  state  cedes  to 
another  state  a  portion  of  the  territory  that  it  owns,  by  renouncing 
its  rights  of  sovereignty  over  it. 

355 


356  INTERNATIONAL  LAW  CODIFIED 

Provided  it  be  legally  concluded  and  satisfies  all  the  require- 
ments of  validity,  such  a  treaty  results  in  a  loss  of  the  rights  of 
sovereignty  over  the  territory  ceded  by  the  ceding  state  and  the 
acquisition  of  the  same  rights  by  the  transferee  state  (see  rules  147 
and  et  seq.) 

A  treaty  of  cession  does  not  become  operative  at  the  time  of  the  stipulation, 
Ijut  at  the  time  the  ceded  territory  is  taken  over. 

Compare  rule  150. 

We  must,  therefore,  admit  that  if  tiie  transferee  power  should  fail  to  exer- 
cise its  rights  for  a  considerable  time,  the  treaty  of  cession  might  be  considered 
inoperative,  on  the  ground  of  tacit  renunciation  on  the  part  of  the  trans- 
feree. It  is  true  that,  in  international  law,  there  is  no  rule  relating  to  extinc- 
tive prescription,  as  is  the  case  in  positive  civil  law;  but  we  must  admit,  under 
general  principles,  that  he  who  fails,  for  a  long  period  of  time,  to  claim  his 
rights,  must  be  regarded  as  having  renounced  them.  As  some  form  of  taking 
possession  of  the  ceded  territory  must  be  deemed  essential  to  make  a  treaty  of 
cession  operative,  it  is  reasonable  to  concede  that,  if  the  transferee  should  fail  to 
take  possession  of  the  said  territory  and  should  allow  a  great  many  years  to 
pass  (30  or  50,  for  example),  without  availing  itself  of  its  rights,  it  should  be 
proper  to  claim  extinctive  prescription. 

850.  No  peaceful  treaty  of  voluntary  cession  of  a  portion  of 
territory  can  be  considered  valid  unless  it  has  been  concluded  by 
those  authorized  thereto  by  the  constitutional  laws  of  the  ceding 
country  and  in  conformity  with  the  forms  required  under  pubhc 
municipal  and  international  law  (see  rules  751,  759). 

851.  The  effects  of  a  treaty  of  cession,  either  so  far  as  they 
modify  the  exercise  of  the  respective  rights  of  sovereignty,  or  so  far 
as  the  rights  of  private  persons  are  concerned,  must  be  determined 
in  conformity  with  the  rules  relating  to  cession  and  annexation. 

See  the  rules  laid  down  in  Book  I,  §§  154  et  seq. 

852.  Leaving  aside  the  question  of  the  right  of  every  victor  to 
condition  the  conclusion  of  peace  upon  the  cession  of  a  portion  of 
territory,  and  the  question  of  the  advisability  of  profiting  by  the 
fortunes  of  war  and  of  imposing  that  condition  on  the  vanquished, 
treaties  of  forced  territorial  cession  lawfully  concluded  (con- 
formably to  the  principles  of  rule  850)  must  be  deemed  valid  be- 
tween the  contracting  parties,  if  the  general  rules  of  international 
law  relating  to  the  validity  of  treaties  have  been  observed. 

TREATIES   OF   COMMERCE 

853.  The  main  object  of  commercial  treaties  must  be  to  regulate 
commercial   relations   between   the    contracting   parties   for   the 


SPECIAL   TREATIES  357 

purpose  of  protecting,  extoiidinp;  and  developing  the  freedom  of 
commerce. 

854.  States  should  conclude  treaties  of  commerce  in  order  to 
faciUtate  exchanges,  to  overcome  obstacles  which  hinder  the  free 
movement  of  the  products  of  the  soil  and  industry  and  to  protect 
the  freedom  of  competition,  rather  than  to  organize,  directly  or 
indirectly,  a  protective  sj^stem  or  to  establish,  in  the  interest  of 
the  Treasury,  any  form  whatever  of  restriction  upon  the  freedom 
of  commerce. 

855.  Commercial  treaties  must  be  based  on  the  most  complete 
equaUty  of  treatment  so  as  to  assure  equivalent  and  proportion- 
ately equal  advantages  to  the  contracting  states  and  their  citizens, 
without  either  of  the  parties  taking  advantage  of  its  preponderance 
and  greater  power  to  compel  the  other,  weaker  or  less  powerful,  to 
accede  to  less  favorable  or  more  onerous  conditions. 

856.  States  may  regulate,  through  a  treaty  of  commerce,  all 
matters  concerning  their  international  relations,  but  the  proper 
object  of  these  conventions  is  to  regulate  importation  and  exporta- 
tion, the  transit,  transfer,  and  deposit  of  merchandise,  customs 
tariffs,  navigation  dues,  quarantine,  coastwise  trade,  fishing  and 
other  commercial  acts. 

857.  Each  state  should  conclude  commercial  treaties  with  the 
greatest  possible  number  of  states,  so  as  to  extend  the  freedom  of 
international  exchanges  and  to  promote  reciprocal  interest  as 
much  as  possible  by  developing  competition. 

The  foregoing  rules  seek  to  introduce  in  practice  the  principles  advocated  by 
modern  science,  namely,  that  the  reciprocal  interest  ©f  all  the  states  seeking 
to  assure  the  development  of  the  different  factors  of  national  wealth  consists 
in  multiplying  international  exchanges  as  much  as  possible  and  in  promoting 
competition.  Without  competition,  national  industry  cannot  thrive;  it  re- 
mains stationary,  and  if  industry  were  not  stimulated  and  encouraged  by 
competition  to  greater  productivity,  there  would  bo  no  stimulus  to  labor,  the 
principal  factor  of  national  prosperity,  and  the  increase  of  capital  essential  to 
the  development  of  agriculture,  industry  and  commerce.  It  is  certain  that 
in  order  to  meet  the  movement  of  international  exchanges  and  foreign  compe- 
tition, it  is  indispensable  to  improve  and  encourage  national  industry.  That 
must  be  the  task  of  each  government.  Nevertheless,  it  is  evident  that  public 
prosperity  and  national  wealth  could  not  be  achieved  and  increase  without  the 
development  of  all  the  contril)uting  factors,  and  that  such  development  is 
bound  up  with  the  laws  governing  freedom  of  production,  commerce,  competi- 
tion and  international  exchanges.  Each  government  must  improve  the  agri- 
culture and  industry  of  its  country,  in  order  that  it  may  be  able  to  hold  its 


358  INTERNATIONAL   LAW    CODIFIED 

own  in  the  struggle  with  foreign  competition  and  international  exchanges;  and 
therein  lies  the  secret  of  public  prosperity. 

858.  Treaties  of  commerce  must  be  executed  with  the  most 
scrupulous  integrity  and  good  faith.  Governments  must  examine 
and  weigh  carefully  the  obligations  they  are  about  to  assume 
in  a  convention  of  this  kind  and  absolutely  avoid  recourse  to 
any  subterfuge  to  evade  the  faithful  execution  of  its  stipula- 
tions. 


INTERPRETATION   OF   TREATIES   OF    COMMERCE 

859.  Treaties  of  commerce  must  be  interpreted  according  to 
their  purpose  and  the  intention  of  the  parties. 

They  must  be  considered  as  concluded  mainly  to  regulate  com- 
mercial intercourse  and  cultivate  amicable  relations  between  the 
contracting  parties,  and  must  be  regarded  as  completely  suspended 
when  war  breaks  out,  provided  there  is  no  clause  to  the  contrary 
in  the  treaty  expressly  declaring  that  certain  clauses  are  to  apply 
in  time  of  war. 

Since  it  is  generally  admitted  that  war  does  not  annul  ipso  jure  ipsogue 
faclo  treaties  concluded  before  the  declaration  of  war,  but  only  suspends  the 
operation  of  those  inconsistent  with  war,  it  follows  that  treaties  of  commerce 
and  navigation  and  those  concerning  certain  customs  relations  and  others  of 
like  nature,  while  they  cannot  be  deemed  null  and  void,  must  be  regarded  as 
suspended  in  their  operation  by  reason  of  the  war.  Still,  it  is  necessary  to 
bear  in  mind  that  in  certain  commercial  treaties,  as  in  that  between  the  United 
States  and  Italy  of  1871,  certain  articles,  and  especially  articles  12  to  21,  have 
no  appUcation  in  time  of  peace,  but  only  apply  when  war  breaks  out  between 
the  two  countries.  As  regards  private  rights  governed  by  treaties,  it  may  be 
said,  in  principle,  that  even  though  they  must  be  regarded  as  suspended  when- 
ever their  exercise  happens  to  be  connected  with  sovereign  rights,  a  differ- 
ent rule  must,  nevertheless,  be  followed  in  certain  cases.  Thus,  for  example, 
it  might  be  said  (when  so  stipulated  in  the  agreement)  that  judgments  ren- 
dered by  the  respective  courts  are  to  be  executed.  In  such  case  it  could  not 
be  maintained  that  this  could  be  continued  notwithstanding  the  war,  owing 
to  the  fact  that  the  right  of  sovereignty  is  at  stake  jointly  with  the  right  of 
individuals.  On  the  other  hand,  copyright  rights  regulated  by  treaty  should 
be  respected  notwithstanding  the  state  of  war.  This  applies  also  to  treaties 
concerning  exclusively  the  exercise  and  enjoyment  of  private  rights.  Now-a- 
days,  especially  since  war  is  admitted,  with  more  reason,  to  be  a  relation  be- 
tween states  and  that  mdividuals  in  the  exercise  of  their  rights  should  not 
he  involved  in  the  relations  between  states,  the  supreme  rule  in  deciding  the 
matter  may  be  found  in  this  principle. 


SPECIAL   TREATIES  359 

TREATMENT   OF  THE   MOST   FAVORED  NATION 

860.  A  reciprocal  most-favored-nation  clause  in  a  treaty  implies 
the  right  of  one  of  the  parties  to  enjoy  any  favor  whatever  granted 
by  the  other  party,  by  treaty,  to  a  third  power. 

[This  represents  the  usual  continental  view.  The  position  of  the  United 
States  has  been  that  privileges  extended  in  a  treaty  in  return  for  reciprocal 
advantages  cannot  be  claimed  gratuitously  by  another  power  under  a  most- 
favored-nation  clause,  but  must  rest  upon  a  grant  of  equivalent  benefits  to  the 
United  States. — See  Moore,  Digest  of  International  Law,  v.  5,  §  765. — Transl.] 

861.  The  right  to  enjoy  the  treatment  of  the  most  favored  na- 
tion is,  in  principle,  conditioned  upon  the  treaty  with  the  third 
power  being  still  in  force.  It  must,  therefore,  be  deemed  extin- 
guished by  reason  of  the  expiration  of  the  final  term  stipulated  in 
the  treaty  with  the  third  power,  and  cannot  be  operative  beyond 
the  term  stipulated  in  the  most-favored-nation  treaty  itself. 

It  is  evident  that,  as  the  advantages  and  favors  granted  by  the  clause  cannot 
be  extended,  neither  can  the  term  be  extended,  since  it  must  be  considered  as 
an  integral  element  of  the  thing  enjoyed. 

862.  WTien  the  state  which  has  stipulated  for  most-favored- 
nation  treatment  claims  its  privilege  by  formally  notifying  the 
other  party,  through  diplomatic  channels,  that  it  considers  itself 
entitled  to  a  more  favorable  concession  granted  to  a  third  power, 
and  the  other  party  has  expressly  acknowledged  the  claim,  the 
right  so  acquired  under  the  clause  will  be  regarded  as  fully  vested 
and  will  subsist  until  the  expiration  of  the  treaty  between  the 
parties,  of  which  the  right  thus  formally  acquired  is  to  be  con- 
sidered an  integral  part. 

863.  When  the  express  declaration  of  intention  to  take  ad- 
vantage of  the  right  of  most  favored  treatment  has  not  been 
made  through  diplomatic  channels,  as  stated  in  the  foregoing  rule, 
we  must  hold  as  ineffectual  any  tardy  declaration  made  after  the 
treaty  executed  with  the  more  favored  third  power  has  expired, 
and  the  more  favorable  treatment  will  have  to  be  considered  as 
having  ceased  from  the  day  when  the  treaty  with  the  third  power 
went  out  of  force. 

Treaties  concluded  with  third  powers  cannot,  in  principle,  grant  the  enjoy- 
ment of  any  right,  excrpt  when  the  parties  have  agreed  that  one  of  them 
could  avail  itself  of  the  more  favorable  advantages  granted  by  the  other  to  a 
third  power  and  could  claim  the  same  rights.  As  to  it,  it  is  evident  that 
Bince  the  right  arises  from  the  more  favorable  treatment  of  the  third  power, 


360  INTERNATIONAL    LAW    CODIFIED 

it  can  only  subsist  so  long  as  the  treaty  of  which  the  claiming  state  desires  to 
avail  itself  exists.  Therefore,  if  that  treaty  has  expired,  the  right  to  invoke 
its  enjoyment  must  be  likewise  considered  as  having  lapsed.  This  is  a 
case  where  we  may  apply  the  maxim:  Conventio  omnis  intelligitur  rebus  sic 
stantibus.  A  party  may  claim  the  enjoyment  of  a  privilege  so  long  as  it 
is  granted  to  a  third  power.  It  could  not,  however,  take  advantage  of  a  privi- 
lege that  no  longer  exists. 

The  case  seems  to  us  quite  different  where  an  express  declaration  is  made  by 
a  party  which  notifies  the  other  that  it  considers  itself  entitled  to  a  privileged 
right  under  the  most-favored-nation  clause  of  a  treaty.  In  such  a  case  it 
exercises  its  own  right  in  considering  itself  as  the  grantee  of  the  concession  of 
the  more  favorable  treatment  extended  to  the  third  power,  and  the  right  so 
acquired  becomes  the  complement  of  the  right  arising  from  the  treaty  con- 
cluded with  its  co-contracting  party.  Therefore,  that  party  could  no  longer 
limit  the  enjojmient  of  the  right  to  the  term  fixed  for  the  expiration  of  the 
treaty  concluded  with  the  third  power.  It  would  suffice,  indeed,  if  the  claim- 
ing party  based  its  right  on  the  most-favored-nation  clause  of  the  treaty  and 
its  express  and  duly  notified  declaration  that  it  intended  taking  advantage  of 
the  more  favorable  concession  made  to  a  third  power.  Having  thus  acquired 
jure  propria  the  right  to  enjoy  that  concession,  the  right  thus  formally  acquired 
should  be  considered  independent  of  the  concomitant  existence  of  the  treaty 
with  the  third  power,  which  would  merely  serve  to  determine  the  extent  of 
the  more  favorable  treatment  without  regard  to  the  length  of  time  of  its 
enjoyment. 

864.  The  general  clause  extending  most-favored-nation  treat- 
ment cannot  be  invoked  to  claim  the  enjoyment  of  any  privilege 
whatsoever  granted  to  a  third  power,  under  any  kind  of  treaty 
concluded  with  that  power,  but  must  be  considered  as  limited  to 
the  treaties  which  have  the  same  object  and  purpose. 

The  stipulations  of  treaties  of  commerce  must  be  interpreted  by  taking 
into  account  the  object  and  purpose  of  the  treaty  and  the  intention  of  the 
parties;  such  must  be  the  case  especially  as  regards  the  clause,  often  inserted, 
under  which  one  of  the  parties  has  the  right  to  enjoy  the  advantages  that  are 
or  shall  be  granted  by  the  other  to  the  most  favored  nation.  If,  for  instance, 
a  treaty  be  concluded  with  a  third  power,  in  which  other  matters  foreign  to 
commerce  were  provided  for,  e.  g.,  the  transfer  of  successions  in  its  relation 
with  the  applicable  law,  or  liquidation  in  case  of  bankruptcy,  etc.,  it  could  not 
be  claimed,  in  our  opinion,  that  such  provisions,  undoubtedly  foreign  to  com- 
merce, ought  to  be  enjoyed  by  the  other  state  under  the  most-favored-nation 
clause  embodied  in  a  treaty  of  commerce.  The  import  and  extent  of  such  a 
clause,  like  those  of  any  treaty  stipulation,  must  be  determined  by  the  object 
and  purpose  of  the  treaty. 

UTILITY   OF   TREATIES   OF   COMMERCE 

865.  Treaties  of  commerce,  save  for  express  provision  to  the 
contrary,  extend  to  all  the  possessions  of  the  contracting  states  at 
the  time  of  the  conclusion  of  the  treaty. 


SPECIAL    TREATIES  361 

With  respect  to  possessions  subsequently  acquired  by  the  state, 
the  rules  hereinbefore  laid  down  relating  to  annexation  are  appli- 
cable. 

866.  A  treaty  of  commerce,  although  duly  concluded,  becomes 
operative  between  the  contracting  parties  only  after  its  ratifica- 
tion in  conformity  with  the  constitutional  law  of  the  respective 
states  and  after  the  exchange  of  ratifications. 

It  must  be  considered  in  force  until  the  expiration  of  the 
term  fixed  therein,  unless  its  duration  is  extended  by  express  or 
tacit  consent  of  the  parties  themselves.  In  that  case,  it  will  be 
held  to  be  reciprocally  binding  until  either  party  has  notified  the 
other  through  diplomatic  channels  of  its  intention  to  terminate  it, 
fixing  the  day  on  which  it  shall  be  considered  abrogated. 

TREATIES   OF   CUSTOMS   UNION 

867.  The  purpose  of  treaties  of  customs  union  is  to  estabhsh 
between  the  states  organized  as  a  union  the  right  of  free  exchange 
of  products,  without  subjecting  their  respective  citizens  to  the 
payment  of  customs  duties  at  the  frontier. 

The  result  of  these  treaties  is,  with  respect  to  the  collection  of 
the  respective  customs  duties,  to  suppress  the  effect  of  boundaries 
between  the  states  of  the  union. 

Customs  unions  aim  to  consolidate  the  economic  interests  of  the  peoples 
who  are  members  thereof,  and  thus  to  prepare  gradually  for  their  pohtical 
union.  The  most  striking  instance  is  found  in  the  present  political  union  of 
the  states  of  Germany,  which  was  the  final  outcome  of  the  Zollverein  (German 
Customs  Union).  This  union,  initiated  by  Prussia  in  1828,  was  successively 
enlarged  with  admirable  perseverance  by  consolidating  the  economic  inter- 
ests of  the  different  states  of  Germany  associated  with  the  intention  of  pre- 
paring and  bringing  about  their  political  union,  as  happened  after  the  events 
of  18G6  and  1870. 

Compare:  Funck-Brentano  and  Sorel,  Precis  du  droit  des  gens,  pp.  158  to  174, 
on  the  political  consequences  of  the  customs  union;  Richelot,  L'a&sociation 
douanibre  allemande;  and  Bonfils,  3d  ed.,  where  in  a  foot-note  under  §  919, 
numerous  works  on  the  subject  are  cited. 

CONSULAR   CONVENTIONS 

868.  The  purpose  of  consular  conventions  is  to  establish  con- 
sulates by  common  agreement  in  the  countries  parties  thereto, 
and  to  determine  the  rights,  attributes,  functions  and  prerogatives 


362  INTERNATIONAL   LAW   CODIFIED 

of  the  respective  consuls  and  their  relations  with  the  territorial 
law  and  authorities  in  the  exercise  of  consular  rights. 

869.  It  is  the  duty  of  states  to  extend  the  conclusion  of  consular 
treaties  as  much  as  possible  for  the  protection  of  their  citizens 
residing  abroad  and  to  assist  them  in  carrying  on  and  developing 
trade  and  commerce. 

870.  Consular  treaties  must  be  considered  especially  useful  and 
desirable  when  they  improve  the  organization  or  operation  of  the 
consular  establishment. 

For  the  determination  of  these  functions  and  relations,  compare 
rules  495-529. 

CAPITULATIONS 

871.  The  object  of  Capitulations  is  to  determine  and  to  regulate 
the  relations  between  civilized  and  uncivilized  states,  as  regards 
the  exercise  of  their  respective  sovereign  rights  with  respect  to  the 
citizens  of  civilized  states  who  reside  in  the  countries  where  Capit- 
ulations are  in  force;  to  regulate  the  administration  of  civil  and 
criminal  justice  with  respect  to  these  citizens;  and  to  determine  the 
prerogatives  and  privileges  of  diplomatic  and  consular  agents  and 
their  special  functions. 

872.  In  principle,  Capitulations  are  derogatory  to  the  local 
"common"  law;  they  are  based  on  the  inferior  state  of  civiliza- 
tion of  certain  states  of  Africa,  Asia  and  other  barbarous  regions, 
which  makes  it  impracticable  to  exercise  sovei'eign  rights  mutually 
and  reciprocally  with  perfect  equality  of  legal  condition. 

873.  Capitulations  must  be  considered  as  concluded  for  an  in- 
determinate period,  and  held  binding  in  their  derogations  from 
"common"  law  until  revoked  by  reciprocal  consent  of  the  states 
between  which  they  are  in  force. 

In  the  countries  where  Capitulations  are  in  force,  it  is  necessary 
not  only  to  apply  their  provisions  but  also  to  observe  the  rules 
arising  from  custom  established  by  a  constant  practice  in  the 
exercise  of  the  functions  assigned  to  the  respective  authorities. 

The  first  Capitulation  dates  back  to  February,  1535,  and  was  obtained  by 
Francis  I  from  Soliman  the  Magnificent.  See,  for  the  history  of  Capitulations 
and  of  the  conventions  successively  concluded  and  renewed:  Feraud-Giraud, 
De  la  jurididion  frangaise  dans  les  EcheUes  du  Levant  el  de  Barberie  el  les  jus- 
tices mixtes  dans  les  pays  hors  chrelienle;  Benoit,  Elude  sur  les  capitulations 
entre  V empire  Ottoman  et  la  France,  Paris,  1890;  Pradier-Fodere,  La  question 


SPECIAL  TREATIES  363 

des  capitulations  en  Orient,  Revue  de  droit  internat.,  1869,  p.  118;  Bonfils, 
Manual  du  droit  internat.  piiblic,  p.  423;  Contuzzi,  II  diritto  intemazionale 
nella  sua  appHcabilitd  in  OrierUe;  Olivi  Luigi,  under  the  word  Capitolazioni, 
in  the  Digesto  Italiano. 

At  the  present  time,  besides  the  Ottoman  Empire,  Capitulations  are  in 
force  in  other  oriental  states. 

The  countries  where  Itahan  consuls  exercise  civil  and  criminal  jurisdiction 
under  Capitulations  are: 

China — (See,  for  jurisdiction  in  criminal  matters,  the  treaty  of  October  25, 
1860,  art.  26). 

Corea— (Treaty  of  June  26,  1884)  art.  3. 

Morocco— (Treaty  of  June  30,  1825;  treaty  of  Madrid  of  July  3,  1880,  and 
General  Act  of  Algeciras  of  April  7,  1906,  Ch.  II  and  V.) 

Persia— (Treaty  of  September  26,  1862,  art.  5.) 

Siam— (Treaty  of  April  8,  1905,  art.  3.) 

Turkey,  for  all  its  provinces  and  dependencies.  In  Turkey,  Itahan  con- 
sulates are  estabhshed  in  Europe  proper,  at  Constantinople;  at  Canea,  for 
the  whole  territory  of  the  Island  of  Crete;  at  Philippopoli  and  Sofia,  for  Bul- 
garia; at  Janina,  Salonika,  Scutari,  and  Uskub.  For  Turkey  in  Asia,  they  are 
located  at  Aleppo;  for  SjTia,  at  Beirut,  Damascus  and  Jerusalem,  Smyrna  and 
Trebizond.  For  the  Turkish  provinces  of  Africa,  they  are  established  at 
Bengazi,  at  Tripoli  [before  the  Italian  occupation]  at  Alexandria  in  Egypt, 
Cairo  and  Port  Said.  See  for  Egypt  the  protocol  of  January  23,  1875,  and  the 
judicial  regulations  annexed  thereto,  and  for  the  other  provinces,  the  treaty 
of  July  10,  1861,  article  I,  and  the  treaty  of  Berlin  of  July  13,  1878,  articles 
8  and'20. 

See  for  the  changes  which  have  occurred  in  the  system  of  Capitulations  in 
Egypt,  Algeria,  Tripoli,  Morocco,  Madagascar,  etc.,  A.  Merignac,  Traite  de 
droit  public  international,  pp.  91  et  scq.,  and  the  authors  cited  by  him,  pp.  66 
and  67. 

[Turkey,  by  unilateral  notification  to  the  Powers  shortly  after  the  outbreak 
of  the  European  War  of  1914,  undertook  to  terminate  the  Turkish  Capitula- 
tions. The  United  States,  and  some  other  powers,  have  not  acquiesced  in 
this  attempt  of  Turkey  to  rid  itself  of  the  serious  encroachment  upon  national 
sovereignty  imposed  by  the  Capitulations;  its  success  will  possibly  depend 
considerably  upon  the  outcome  of  the  European  War — Transl.] 

874.  Although  concluded  for  an  indeterminate  period,  Capitula- 
tions should  not  be  maintained  in  force  after  the  state  of  affairs 
upon  which  they  were  brought  into  existence  has  ceased  to  exist. 

In  that  event,  the  Capitulations  may  be  revoked  by  reciprocal 
consent  of  the  parties.  In  the  absence  of  such  agreement,  the 
state  where  the  Capitulations  are  in  force  has  the  right  to  annul 
them  and  to  demantl  their  revocation  before  a  competent  inter- 
national COtU't. 

This  rule  is  founded  on  the  i>rinciple  of  the  tacit  condition  precedent  which 
is  the  foundation  of  conventional  law  (.see  Rule  835).  When  the  presupposed 
fact,  which  j)rcsents  the  cli.-iract eristics  .stafcul  in  rule  835,  and  constitutes  the 
main  object  of  the  conveuli(jri  happens  to  disappear,  the  convention  must  be 


364  INTERNATIONAL    LAW    CODIFIED 

annulled.  The  presupposed  fact  which  legitimates  Capitulations  is  the  ab- 
sence of  legal  guaranties,  due  to  a  lack  of  civilization,  which  makes  it  indis- 
pensable, for  the  security  of  persons  and  property  and  for  the  administration 
of  civil  and  criminal  justice,  to  apply  theinternational  system  of  Capitulations, 
according  to  which,  in  derogation  from  local  law,  the  exercise  of  the  power  of 
jurisdiction  is  granted  to  the  state  to  which  the  persons  are  attached,  either  as 
citizens  or  dependents.  Now,  when  the  presupposed  fact,  lack  of  civilization, 
disappears  in  a  given  country,  the  Capitulations  no  longer  have  any  raison 
d'etre.  This  was  observed,  with  reference  to  Japan,  which  was  still  under  the 
system  of  Capitulations,  in  our  second  edition,  1898  (rule  748).  That  coun- 
try, having  made  great  progress  toward  raising  itself  to  the  level  of  the  civilized 
states  of  Europe,  was  justified  in  bringing  about  the  revocation  of  the  Capitu- 
lations.    At  present,  that  right  is  extended  to  Japan  by  all  civilized  states. 

The  same  thing  occurred  in  the  Christian  countries  which  formerly  were  part 
of  the  Ottoman  Empire,  where  Capitulations  ceased  to  be  in  force  when  they 
were  recognized  as  independent  states  by  the  treaty  of  Berlin  of  July  13,  1878. 

TREATY    OF   PROTECTORATE 

875.  A  treaty  of  protectorate  is  one  by  which  a  weak  or  uncivil- 
ized state,  which  assumes  the  condition  of  a  protected  state,  and  a 
powerful  state,  which  assumes  the  position  of  a  protecting  state, 
establish  by  common  agreement  the  conventional  limitations  upon 
the  exercise  of  their  respective  rights  of  sovereignty  in  international 
relations. 

876.  Whether  concluded  by  voluntary  request  of  one  of  the 
parties  or  imposed  by  force,  the  treaty  of  protectorate  can  be 
valid  only  when  there  exists  the  freedom  of  consent  required  for 
the  validity  of  treaties. 

It  is  valid  in  regard  to  third  powers  only  after  diplomatic  notifica- 
tion and  when  not  opposed  by  any  of  the  powers,  in  which  case 
it  becomes  effective  from  the  day  of  its  notification. 

Compare  Arts.  34  and  35  of  the  Treaty  of  Berlin  of  February  26,  1885. 

877.  The  treaty  of  protectorate  can  be  effective  only  if  the 
limitations  upon  the  exercise  of  the  rights  of  sovereignty  are  de- 
termined in  a  certain  and  unequivocal  manner.  Like  any  con- 
vention limiting  the  free  exercise  of  the  rights  of  sovereign  states, 
it  must  be  strictly  interpreted  and  in  the  sense  least  unfavorable 
to  the  liberty  of  the  protected  state. 

In  every  doubtful  case,  the  rules  relating  to  the  interpretation 
of  the  limitations  upon  the  liberty  of  persons  must  be  applied. 

878.  The  limitation  upon  the  exercise  of  the  rights  of  sover- 
eignty established  through  a  protectorate  may  be  applied  only 


SPECIAL  TREATIES  365 

to  rights  concerning  the  international  personality  of  the  protected 
state,  that  is,  the  capacity  to  conclude  treaties,  to  assume  inter- 
national obligations,  to  maintain  diplomatic  relations  in  its  own 
name,  and  do  any  other  act  manifesting  the  international  person- 
ality of  the  state. 

879.  No  treaty  establishing  a  protectorate  can  validly  seek  to 
impose  any  form  of  political,  economic  or  administrative  depend- 
ency on  the  protected  state,  which  implies  a  limitation  of  its  inter- 
nal sovereignty  by  placing  it  in  the  condition  of  a  semi-sovereign 
state,  thus  constituting  a  relation  of  vassalage  with  the  intention 
of  effecting  the  conquest,  submission  and  annexation  of  the  pro- 
tected state. 

A  protectorate  properly  speaking  should  have  for  its  object  protection,  de- 
fense and  assistance  on  the  part  of  the  protecting  state,  in  order  to  encourage 
the  development  of  civilization  in  the  protected  state  and  to  represent  that 
state  in  its  relations  with  other  states.  A  treaty  establishing  a  protectorate, 
strictly  speaking,  may  merely  modify  the  international  personality  of  the  pro- 
tected state,  leaving  its  sovereign  free  and  autonomous  in  the  exercise  of  his 
functions  within.  On  the  contrary,  when  the  protected  state  is  subject  to  the 
suzerainty  of  and  political  dependency  upon  the  protecting  state,  the  protecto- 
rate serves  merely  to  cover  the  annexation  and  subjection  of  the  protected 
country. 

The  relations  established  by  the  treaty  of  December  17,  1885,  between  the 
French  Republic  and  the  Queen  of  Madagascar  were  always  given  the  name  of 
protectorate;  but  the  final  outcome  sanctioned  by  the  law  of  August  6,  1896, 
which  declared  the  island  of  Madagascar  and  the  dependent  islands  to  be 
French,  shows  what  the  true  character  of  the  French  protectorate  was. 

See,  on  the  question  of  protectorates:  Despagnet,  Essai  sur  les  protedorats; 
Wilhelm,  Theorie  juridique  des  proleclorals,  in  Journal  du  droit  international 
prive,  1890,  p.  204;  Pic,  Influence  de  V etahlissement  d'un  protectorat,  in  Revue 
generale  de  droit  international  public,  1896,  p.  613,  and  the  works  cited  in  the 
notes;  Catellani,  Nota  cntica  sugli  ultinii  atudi  sul  protettoralo  in  Rivista  italiana 
per  le  scienze  giuridiche,  v.  XXIII,  fasc.  I,  and  the  authors  cited  by  him; 
Fiore,  Diritto  internaziormle  pubblico,  4th  cd.,  Del  prolettorato  coloniale,  v.  2,  p. 
620;  Oppenheim,  International  law,  I,  §  92. 

880.  A  treaty  establishing  a  protectorate,  when  properly  con- 
cluded, modifies  the  political  constitution  of  the  protected  state, 
in  the  sense  that  it  modifies  its  international  personality. 

The  consequences  of  a  protectorate  relation  upon  the  modifica- 
tions in  the  powers  and  functions  of  the  state  in  its  relations  with 
foreign  governments  should  be  subject  to  the  rules  that  apply  to  a 
change  in  the  constitutional  law. 

881.  Acts  performed  by  the  protected  state  prior  to  the  estab- 
lishment of  the  protectorate,  which  have  given  rise  on  the  part  of 


366  INTERNATIONAL    LAW    CODIFIED 

third  states  to  perfect  rights  legitimately  vested,  continue  to  be 
operative,  save  when  clearly  incompatible  with  the  new  condi- 
tions arising  out  of  the  protectorate,  and  so  long  as  their  legal 
value  has  not  been  destroyed  in  conformity  with  the  rules  of 
"common"  law,  or  they  do  not  become  extinguished  by  the 
expiration  of  the  term  of  their  duration. 

EFFECTS   OF   TREATY   ESTABLISHING   A    PROTECTORATE 

882.  A  treaty,  properly  concluded,  establishing  a  protectorate 
must  be  deemed  binding  between  the  parties  until  revoked. 
Both  parties  therefore  must  fully  execute  the  obhgations  contracted 
notwithstanding  the  fact  that  the  execution  may  be  considered 
onerous  or  humihating. 

The  protected  state,  however,  may  bring  about  the  suspension 
of  the  treaty  by  submitting  its  demand  to  the  decision  of  a  tribunal 
of  arbitration  and  observing  the  rules  of  "common"  law  relative 
to  the  suspension  or  revocation  of  treaties. 

883.  Should  either  party  avail  itself  of  the  right  to  suspend  the 
treaty  estabUshing  a  protectorate,  the  effects  thereof  with  regard 
to  third  powers  ought  to  be  determined  in  accordance  with  the 
rules  of  "common"  law  relative  to  the  suspension  or  denunciation 
of  a  treaty  before  its  regular  expiration. 

884.  The  legal  import  of  the  international  acts  accomplished 
both  by  the  protected  and  the  protecting  state  must  be  determined 
in  accordance  with  the  stipulations  of  the  treaty  and  in  conformity 
with  the  rules  of  "common"  law. 

TREATIES   CONCERNING   SPHERES   OF   INFLUENCE 

885.  The  object  of  a  treaty  concerning  spheres  of  influence  in 
uncivilized  countries  is  to  determine  the  portion  of  territory  occu- 
pied by  the  natives  with  respect  to  which  one  of  the  signatory 
states  may  develop  its  colonizing  activity  without  interference  or 
objection  on  the  part  of  the  other. 

In  order  to  set  out  precisely  the  substance  of  this  sort  of  convention,  we 
cannot  do  better,  we  believe,  than  refer  to  the  text  of  the  treaty  concluded  be- 
tween Great  Britain  and  Portugal  on  June  11,  1891,  defining  their  respective 
spheres  of  influence  in  Africa.  After  having  fixed  (Arts.  1-7)  the  boundary  of 
their  respective  spheres,  the  two  states  define  their  rights  as  follows; 


SPECIAL  TREATIES  367 

Art  8.  "The  two  Powers  engage  respectively  not  to  interfere  in  matters 
relating  to  the  sphere  of  influence  reserved  to  the  other  by  articles  1  to  6. 
Neither  of  the  two  Powers  shall  acquire  territory,  conclude  treaties,  accept 
sovereign  rights  or  protectorates  in  the  sphere  of  influence  of  the  other.  It  is 
understood  that  corporations  or  individuals,  citizens  of  one  of  the  Powers, 
can  enjoy  sovereign  rights  in  a  sphere  of  influence  reserved  to  the  other  only 
with  the  consent  of  the  latter  Power." 

886.  Treaties  concerning  spheres  of  influence  may  be  considered 
as  designed  merely  to  determine  the  personal  obhgations  assumed 
by  the  contracting  parties. 

The  dehmitation  of  the  respective  spheres  of  influence  between 
two  contiguous  colonizing  states  may,  therefore,  be  considered  as 
a  guide  to  determine  the  normal  development  of  their  respective 
activity  and  to  delimit  the  domain  within  which  they  may  exercise 
their  initiative  with  regard  to  uncivilized  tribes  in  conformity 
with  the  principles  of  "common"  law;  but  it  has  no  value  in 
ascribing  territorial  rights  to  either  of  the  contracting  parties. 

887.  Treaties  concerning  respective  spheres  of  influence  must 
be  notified  to  third  powers,  so  as  to  give  them  an  opportunity  to 
advance  their  claims  and  rights,  and  may  be  deemed  valid  only 
under  the  conditions  established  in  the  treaty  of  Berlin  of  1885  for 
the  notification  of  territorial  occupations. 

Treaties  relating  to  spheres  of  influence  are  effective  only  for  the  contracting 
parties.  As  to  third  powers,  they  must  be  regarded  as  res  inter  alios  acta. 
Nevertheless,  it  is  incumbent  upon  third  powers,  by  reason  of  the  comitas 
gentium,  to  respect  these  treaties,  allowing  states  that  have  concluded  them 
time  to  accomphsh  their  civilizing  mission  undisturbed.  One  must  admit,  on 
the  other  hand,  that  colonizing  states  cannot,  by  reason  of  the  treaty  estab- 
hshing  a  sphere  of  influence  (hinterland),  be  considered  as  authorized  to  act 
with  entire  liberty,  and,  on  pretense  of  colonization,  to  prepare  for  conquest. 

See  infra,  rules  1093  et  seq. 

TREATIES  OF  SUZERAINTY  AND   VASSALAGE 

888.  A  treaty  of  suzerainty  is  one  concluded  between  a  civilized 
and  an  uncivilized  state,  in  which  the  former  imposes  on  the  latter 
(which  accepts  it)  every  obligation  of  mediate  or  immediate  de- 
pendency in  the  exercise  of  its  rights  of  sovereignty  within  the 
state.  When  the  stipulations  imply  the  submission  of  the  sover- 
eign powers  of  the  uncivilized  state  to  the  supreme  jurisdiction  and 
authority  of  the  civilized  state,  the  treaty  is  called  a  treaty  of 
vassalage. 


368  INTERNATIONAL  LAW  CODIFIED 

Under  the  foregoing  names  we  may  rank  all  the  different  forms  of  conven- 
tion which,  at  this  time,  are  a  result  of  the  so-called  colonial  policy  and 
which  aim  in  substance  to  carry  out  so-called  peaceful  "conquests,"  but  whose 
purpose,  in  reality,  is  to  restore  that  anomalous  form  of  state  without  com- 
plete autonomy  within,  denominated  semi-sovereign  state,  destined  to  tempo- 
rary existence  and  unceasing  struggle.  This  has  always  been  the  inevitable 
historical  consequence  of  semi-sovereignty. 

These  categories  of  convention  are  subject  to  so  many  gradations  that  it  is 
difficult  to  classify  them  and  to  apply  to  them  general  and  uniform  principles. 

889.  Since  it  implies  a  kind  of  alienation  of  the  internal  rights 
of  sovereignty  and  a  substitution  in  the  exercise  of  these  rights  of 
the  suzerain  state,  the  treaty  of  suzerainty  and  vassalage  can  be 
valid  only  when  the  subject  state  has  freely  assented  to  it  and  the 
other  state  has  not  unduly  resorted  to  force,  contrary  to  the  princi- 
ples of  international  "common"  law,  to  compel  its  consent. 

890.  The  treaty  of  suzerainty,  so  long  as  it  subsists  and  is  in 
force,  is  of  value  in  determining  the  respective  status  of  the  signa- 
tory states  as  regards  the  exercise  of  sovereign  powers,  and  particu- 
larly of  the  legislative,  judicial  and  administrative  powers,  each 
of  which  must  be  exercised  by  the  suzerain  and  vassal  states  in 
conformity  with  the  stipulations  of  the  treaty. 

Compare  rules  110  el  seq. 

891.  Although  the  state  of  affairs  resulting  from  the  dismember- 
ment of  sovereignty  and  the  dualism  of  empire  and  sovereign 
power  should  be  considered  abnormal,  yet  the  treaty  which  es- 
tablished it  must  be  considered  as  valid  so  long  as  it  subsists,  and, 
so  far  as  the  exercise  of  sovereign  powers  are  concerned,  must  pro- 
duce the  same  effects  as  those  which  arise  from  modifications  in  the 
constitutional  law  of  the  state. 

Such  effects  must  be  admitted,  not  only  by  the  contracting 
parties,  but  also  by  third  powers,  which  have  de  facto  without 
protest  recognized  the  state  of  affairs  established  by  the  treaty. 

892.  The  rules  relating  to  collective  intervention  to  safeguard 
respect  for  legal  principles  according  to  "common"  law  may  be 
applied  to  treaties  of  suzerainty  and  vassalage  imposed  by  force 
and  in  violation  of  the  principles  of  international  law. 

Compare  rule  559. 

893.  Collective  intervention  is  especially  justifiable  when  the 
suzerain  state  attacks  by  force  the  international  existence  of  the 
vassal  state  by  transforming  the  relation  of  suzerainty  into  actual 
annexation. 


SPECIAL   TREATIES  369 

There  is  no  need  to  lay  down  more  complete  rules,  which  the  subject 
might  require,  in  order  to  determine  the  legal  value  of  treaties  of  suzerainty, 
because  with  respect  to  this  exceptional  relation,  which  has  initiated  a  new 
phase  in  the  relations  of  civilized  states  with  barbarous  and  uncivilized  tribes, 
there  exists  the  greatest  confusion,  caused  by  the  social  and  international 
necessity  of  expansion  and  by  the  current  of  contemporary  politics,  which,  it 
is  said,  must  aim  at  the  peaceful  conquest  of  less  civilized  countries,  regard- 
ing the  continual  increase  of  possessions  in  Asia,  Africa  and  other  barbarous 
regions  as  contributing  to  the  progress  of  civilization. 

See  Fiore,  Diritlo  internazionale  pubblico,  4th  ed.,  Appendix,  v.  2,  Del  pro- 
tettorato  coloniale,  p.  628. 

TREATIES   OF    CONFEDERATION 

894.  A  treaty  of  confederation  is  one  by  which  autonomous  and 
independent  sovereign  states  estabUsh  their  compact  of  union, 
to  realize  a  common  purpose  of  poUtical  interest  and  determine 
their  reciprocal  obligations  with  respect  to  the  object  of  their 
political  union. 

895.  The  treaty  of  confederation  must  determine  and  establish 
between  the  contracting  parties  the  rules  of  their  conduct,  and  the 
exercise  and  limitations  of  their  respective  sovereign  rights,  in- 
ternal and  external,  in  all  matters  constituting  the  object  of  the 
political  union  or  confederation. 

In  its  international  results,  the  treaty  may  be  considered  effect- 
ive only  as  to  states  which  have  recognized  the  confederation  es- 
tablished by  the  treaty. 

896.  When,  by  the  treaty  of  confederation,  there  is  constituted 
a  central  power,  with  special  functions  determined  by  the  purposes 
of  the  political  union  and  with  powers  designed  to  attain  these 
purposes  and  to  protect  the  common  interests  which  are  the  basis 
of  the  political  union,  and  when,  by  consent  of  the  confederated 
states,  there  has  been  assigned  to  the  central  power  thus  created 
an  international  legal  capacity  corresponding  with  the  intended 
purposes  of  the  union  and  the  development  of  the  common  in- 
terests, this  organization  may  give  rise  to  a  special  form  of  inter- 
national personality  of  the  Confederation  with  respect  to  the  states 
which  have  recognized  it. 

Compare  Rule  82. 

A  typical  example  of  this  form  of  political  organization  was  found  in  the 
Germanic  Confederation,  constituted  by  articles  53,  54  and  55  of  the  final 
Act  of  the  CJongress  of  Vienna  of  .Juno  9,  1815.  The  (Confederation,  as  a 
collective  entity  perfectly  distinct,  in  the  internal  and  external  relations  of 


S70  INTERNATIONAL    LAW    CODIFIED 

the  (confederated  states,  had  its  own  international  personality,  until  dissolved 
in  1866,  owing  to  the  war  between  the  confederated  states  and  the  victories 
of  Prussia,  crowned  by  the  celebrated  battle  of  Sadowa.  The  Confederation 
had,  in  effect,  the  right  to  conclude  treaties,  to  send  and  to  receive  diplomatic 
agents,  to  make  war,  to  conclude  peace  and  to  exercise  other  powers,  but 
always  in  a  manner  limited  by  the  purpose  of  the  union  and  without  inter- 
fering with  the  international  personality  of  the  confederated  states,  which 
remained  complete  and  unaffected  in  all  matters  not  involving  the  common 
interests  aimed  at  by  the  treaty  creating  the  Confederation. 

897.  The  treaty  of  confederation  has  nothing  in  common  with 
the  federative  compact  established  between  several  states,  united 
under  a  political  constitution  and  forming  an  association  called  a 
federal  state,  federative  empire,  or  compound  state. 

The  federative  compact  bears  the  true  character  of  any  consti- 
tutional law,  and  in  international  relations  produces  the  same 
effects  as  the  political  constitution  of  a  state. 

Compare  rules  104,  105. 

TREATIES   OF   POLITICAL   ALLIANCE 

898.  A  treaty  of  political  alliance  is  one  by  which  two  or  more 
states,  in  order  to  realize  a  certain  political  object,  determine  the 
conditions  of  their  association  and  of  their  reciprocal  poUtical 
or  military  assistance. 

899.  Treaties  of  alliance  may  be  regarded  as  useful  and  not 
contrary  to  the  principles  of  justice  and  of  international  law, 
whenever  the  association  of  forces  is  intended  for  the  protection 
of  law  and  common  interests. 

900.  Every  treaty  of  alliance  concluded  to  attain  a  political 
object,  may  be  considered  just  only  when  the  political  purpose  in 
view  may  be  considered  just  and  not  contrary  to  the  rules  of  com- 
mon international  law. 

The  rules  that  we  propose  are  certainly  not  in  harmony  with  the  conception 
and  purpose  of  the  alliances  concluded  in  our  time.  In  the  present  state  of 
affairs,  since  politics  predominate  over  right,  and  every  state  ranks  greater  as 
its  strength  inspires  fear  and  respect,  the  conclusion  of  alliances  with  powerful 
states  is  an  inexorable  necessity  for  governments  which,  aiming  to  assure  the 
triumph  of  their  policy  in  international  life,  are  impelled  to  take  advantage 
of  the  association  of  forces  in  order  to  exercise  influence.  The  fear  of  isolation, 
which  would  undoubtedly  lead  to  oppression,  sometimes  prompts  the  union 
of  states  having  very  different  tendencies  and  interests.  It  will  sufEce  to  men- 
tion the  treaty  of  alliance  between  France  and  Russia  and  the  treaty  between 
Italy  and  Austria.    Thus,  alliances  assume  the  aspect  of  veritable  leagues  of 


SPECIAL   TREATIES  371 

princes  and  are  more  productive  of  political  disturbance  and  disorder  than  they 
are  contributors  to  the  protection  and  development  of  national  interests.  There 
will  come  a  time  when  states  will  feel  that  they  are  associated  with  one  another, 
either  through  the  natural  force  of  their  common  interests  or  through  the  noble 
purpose  of  protecting  "common"  law,  and  then  treaties  of  alliance  will  attain 
their  true  object;  but  we  are  still  far  from  that  time.  It  will  be  necessary  for 
international  society,  instead  of  being,  as  it  is  to-day,  organized  to  serve  political 
designs,  to  be  transformed  into  a  veritable  society  of  law  among  the  states 
which  enjoy  the  same  degree  of  civilization.  See  our  article  under  the  word 
Alleanza  in  Digesto  Italiano. 

901.  Treaties  of  alliance  must  define  exactly  the  object  and 
conditions  of  the  association  and  the  reciprocal  and  respective 
obHgations  of  the  allied  states,  and  be  interpreted  and  executed  by 
both  parties  loyally  and  in  good  faith. 

Since  the  justice  or  injustice  of  an  alliance  concluded  by  a  treaty  and  the 
legal  value  of  the  treaty  itself  depend  on  the  political  object  and  purpose  of 
the  alliance,  it  must  be  considered  essential  that  its  object  be  well  defined  and 
specified  without  ambiguity.  One  of  the  treaties  of  alliance  concluded  with 
no  definite  object  was  that  of  September  14,  1815,  between  the  sovereigns  of 
Austria,  Prussia  and  Russia,  which  was  called  the  Treaty  of  the  Holy  Alliance. 
By  reading  the  te.xt  of  that  treaty,  it  will  be  seen  how  difficult  it  is  to  determine 
the  object  of  that  aUiance  of  sovereigns. 

902.  A  treaty  of  alUance,  concluded  with  the  obligation  to  unite 
the  respective  military  forces  to  repulse  any  armed  aggression  on 
the  part  of  one  or  more  specified  states,  is  called  a  treaty  of  de- 
fensive alliance. 

A  treaty  which,  on  the  contrary,  implies  an  obligation  of  render- 
ing military  assistance  in  case  either  one  of  the  allied  states  wages 
war  upon  one  or  more  specified  states  is  known  as  a  treaty  of 
offensive  alliance. 

The  treaty  signed  at  Vienna  on  October  7,  1879,  between  Germany  and 
Austria  and  to  which  Italy  adhered  in  1882  has  the  true  character  of  a  treaty 
of  defensive  alliance.  In  1888,  it  was  pul)licly  proclaimed;  but  the  complete 
text  of  the  treaty  has  always  been  kept  a  secret. 

903.  A  treaty  of  offensive  alliance  even  when  not  concluded  '\n 
view  of  an  impending  war,  must  be  executed  with  absolute  sin- 
cerity and  good  faith.  However,  as  no  military  alliance  could  bo 
considered  binding  if  it  should  have  an  object  contrary  to  inter- 
national law,  a  treaty  of  offensive  alliance  would  be  inoperative, 
should  the  allied  state  wish  to  wage  war  in  evident  disregard  of  the 
rules  of  international  law. 

This  rul(!,  which  bases  the  treaty  of  offensive  alliance  upon  the  ta(!it  ("ondi- 
tion  that  no  unjust  war  shall  l)c  waged,  n)ight  lead  to  arbitrariness,  should 


372  INTERNATIONAL   LAW   CODIFIED 

one  admit  on  the  part  of  the  allies  a  wide  latitude  of  decision  as  to  the  casus 
foederis,  and  every  treaty  of  alliance  would  thus  be  rendered  offensive.  Good 
faith  compels  the  admission  of  a  sort  of  presumption  that  a  war  waged  by  the 
allies  is  not  unjust,  and  that,  consequently,  the  state  which  has  assumed  the 
obligation  to  lend  military  assistance  cannot  honestly  refuse  to  fulfill  its  ob- 
ligation. The  legal  presumption  of  the  intrinsic  justice  of  the  cause  of  the 
allies  could  not,  therefore,  be  destroyed  except  by  undeniable  proof  to  the 
contrary. 

904.  Treaties  of  military  alliance  can  be  deemed  binding  only 
when  the  casus  foederis  supervenes,  and  while  the  allied  state  may 
consider  and  decide,  according  to  circumstances,  whether  the 
casus  foederis  exists  or  not,  we  must,  nevertheless,  consider  as  cul- 
pable and  wrongful  the  conduct  of  a  state  which  seeks  by  sub- 
terfuge to  avoid  the  fulfillment  of  obhgations  assumed  towards 
its  allies  under  the  treaty. 

See,  for  the  non-observance  of  the  obligations  assumed  by  a  treaty  of  al- 
liance, the  controversy  between  the  British  Government  and  the  States  General 
of  the  Netherlands,  in  reference  to  the  assistance  requested  by  Great  Britain 
on  the  occasion  of  the  expedition  against  Minorca,  in  Dumont,  v.  7,  part  I,  p. 
398. 

It  is  difficult  in  this  matter  to  reason  rigorously  and  to  lay  down  rules  con- 
formable to  the  principles  of  law.  Now-a-days  political  interest  creates  and 
maintains  political  alliances  and  all  that  can  be  said  is  that  the  obligations  of 
the  alhes  are  as  effective  as  the  political  interest  which  gave  rise  to  the  alliance 
itself. 

TREATIES   OF   PACIFIC   ALLIANCE 

906.  A  treaty  of  peaceful  alliance  is  one  in  which  two  or  more 
states,  desiring  to  attain  a  peaceful  purpose  of  common  interest, 
lay  down  the  conditions  of  their  friendly  and  reciprocal  co-opera- 
tion. 

906.  Anj'-  undertaking  that  may  be  pursued  by  a  state  according 
to  the  principles  of  international  law  may  constitute  the  object 
of  a  treaty  of  peaceful  association. 

Examples  of  such  undertakings  are  the  co-operative  associations 
estabUshed  by  treaty  for  the  purpose  of  promoting  civiUzation  in 
uncivihzed  countries,  for  suppressing  the  slave  trade  where  it  is 
still  carried  on,  for  laying  down  the  basis  of  a  customs  union,  and 
in  general  any  form  of  association  which  aims  to  unite  forces 
towards  better  achieving  some  civilizing  mission  and  co-operating 
for  the  progressive  and  successful  development  of  justice  in  inter- 
national life. 


SPECIAL   TREATIES  373 

Treaties  of  pacific  alliance,  as  wo  imderstaiid  them,  ought  in  a  more  or  less 
remote  future  to  replace  those  of  political  alliance,  especially  between 
states  on  the  same  continent  which  have  attained  the  same  degree  of 
civilization.  It  will  be  necessary,  however,  for  the  system  now  predominating, 
where  politics  prevail  over  right  and  justice  in  international  hfe,  to  make  room 
for  one  more  rational  and  useful,  subordinating  politics  to  the  principles  of 
justice.  The  conception  of  the  solidarity  of  interests  of  civihzed  peoples,  the 
necessity  of  the  international  division  of  labor  and  the  indissoluble  bond  be- 
tween the  well-being  and  prosperity  of  all  peoples,  and  the  rational  and  pro- 
gressive development  of  common  interests  in  international  Ufe  must  be  better 
understood.  Then  the  importance  of  co-operative  association  will  be  realized 
and  it  will  be  admitted  as  a  positive  principle  that  the  sound  and  permanent 
interests  of  any  people  cannot  be  distinguished  from  those  of  others. 

An  example  of  peaceful  association  for  the  development  of  the  economic, 
industrial  and  commercial  interests  of  the  associated  states  is  found  in  the 
German  Customs  Union,  called  ZoUverein.  Compare  Calvo,  Drait  interna- 
tional, V.  1,  §§  79,  80.  For  the  other  forms  of  union  see  Oppenheim,  Interna- 
tional law,  V.  I,  p.  622. 

Compare  rule  867. 

TREATIES   OF   COMMON    INTEREST 

907.  Treaties  of  common  interest  include  all  the  special  con- 
ventions by  which  a  greater  or  smaller  number  of  states  agree  to 
regulate  their  legal  relations  in  matters  of  common  interest  by- 
uniformity  of  law. 

908.  Governments  must  recognize  the  evident  reciprocal  utility 
of  regulating  by  treaty  relations  of  common  interest,  in  order  thus 
to  establish  a  uniform  law  and  to  effect  the  progressive  develop- 
ment of  the  legislative  work  essential  to  translate  into  actual  fact 
the  legal  commimit}'  of  civilized  states. 

909.  Treaties  of  common  interest  should  follow  the  progres- 
sive development  of  the  common  needs  which  proceed  from  the 
development  of  industry,  commerce,  international  exchanges,  art, 
and  division  of  labor,  and  must  seek  to  establish  law  regulating 
public  and  private  relations  and  the  protection  of  the  rights  of 
states  and  of  their  respective  citizens. 

910.  The  subject-matter  of  treaties  of  common  interest  may  be: 
(a)  The   establishment   of   uniform   and    reciprocally    binding 

rules  of  private  international  law,  fixing  the  principles  according 
to  which  the  authority  of  each  law  is  to  control  with  respect  to 
foreigners,  persons,  property,  the  modes  of  acquiring  and  trans- 
ferring property  by  act  inler  vivos,  or  by  will,  procedure,  the  juris- 
diction of  the  courts  when  a  foreigner  is  plaintiff  or  defendant,  the 


374  INTERNATIONAL   LAW    CODIFIED 

order  of  proceedings  to  which  foreigners  are  parties,  and  the 
execution  of  the  judgments  rendered  by  foreign  courts; 

(6)  The  regulation  of  the  numerous  relations  arising  out  of 
the  international  development  of  industry,  commerce,  art  and 
division  of  labor; 

(c)  The  facilitating  of  international  exchanges  by  organizing 
in  an  uniform  method  postal  correspondence,  telegraphic  service, 
the  legal  quotation  of  money  exchange,  weights  and  measures,  and 
international  railroad  transportation; 

(d)  The  legal  protection  of  foreigners  by  recognizing  the  inter- 
national property  in  trade-marks  and  commercial  marks,  designs 
and  products  of  intelligence  and  art; 

(e)  The  simplification  of  legislation  regulating  the  relations 
arising  out  of  trade,  by  establishing  a  uniform  law  governing  bills 
of  exchange,  the  recognition  of  foreign  corporations,  the  regulation 
of  general  average,  bankruptcy,  etc. ; 

(/)  The  rendering  of  mutual  assistance,  so  far  as  it  may  contrib- 
ute to  promote  the  respective  material  and  moral  interests. 

In  this  category  of  treaties  of  public  interest  fall  conventions  concluded  for 
the  protection  of  public  health,  and  to  prevent  the  spread  of  contagious  dis- 
eases, etc.  One  of  the  conventions,  inspired  by  the  eminently  lofty  purpose  of 
safeguarding  public  morality  is  that  of  May  18,  1904,  concluded  with  a  view 
to  prevent  the  traffic  in  women  and  young  girls,  victims  of  the  fraud  of  pro- 
curers who  took  them  abroad  for  purposes  of  prostitution.  This  convention 
for  the  suppression  of  the  white  slave  traffic  was  signed  by  Belgium,  Den- 
mark, France,  Germany,  Holland,  Italy,  Norway,  Portugal,  Russia,  Spain, 
Sweden,  and  Switzerland.  Austria  and  Brazil  later  adhered  to  the  treaty  by 
protocols  of  January  IS,  and  May  12,  1905.  The  signatory  states  agreed  to 
institute  measures  of  surveillance  for  the  repression  of  the  shameful  traffic. 
See  Collezione  dei  tratlati,  v.  XVII,  pp.  317,  492  and  511,  and  Italian  decree  of 
Aprils,  1905,  No.  171. 

911.  Treaties  of  common  interest  will  increase  in  usefulness  in 
proportion  as  the  co-operating  states  grow  more  numerous. 

When  such  treaties  are  concluded  by  states  assembled  in  Con- 
gress or  Conference,  they  acquire  the  true  authority  of  interna- 
tional statutes. 

912.  Treaties  of  common  interest  are  strictly  binding  between 
the  states  that  have  signed  and  ratified  them  or  have  adhered 
thereto. 

Those  concluded  by  states  assembled  in  Congress  or  Conference 
must  also  be  held  binding  only  on  the  signatory  or  adhering  states 


SPECIAL   TREATIES  375 

which  have  ratified  them,  and  must,  as  to  their  observance,  be 
considered  under  the  collective  guaranty  of  all  the  signatory 
states.  They  should,  however,  be  considered  as  the  most  exact 
and  correct  expression  of  the  rules  of  law,  even  with  respect  to 
states  not  concerned  therein,  and  as  having  the  same  authority 
as  any  rule  of  justice. 

Legislative  work  in  international  society  cannot  be  carried  out  otherwise 
than  through  treaties,  by  which  the  states  that  sign  them  determine  the  rules 
of  their  relations  and  conduct  for  the  future,  formally  engaging  to  consider 
them  as  binding  and  to  recognize  their  imperative  authority.  It  is  natural 
that  the  legislative  work  that  is  carried  out  through  treaties  should  have  an 
importance  all  the  greater  as  the  subscriliing  states  increase  in  number.  It  is, 
moreover,  evident  that  when  the  rules  which  in  the  future  are  to  serve  as  the 
basis  of  the  conduct  of  states  have  been  laid  down  in  a  Congress,  they  must 
have  more  authority  and  indirectly  exercise  an  influence  even  on  the  states 
that  have  not  taken  part  in  the  Congress.  For,  indeed,  those  states  must  not 
only  feel  induced  to  adopt  such  rules  by  adhering  to  the  treaty,  but  must  also 
consider  themselves  as  bound  to  recognize  therein  the  authority  that  the  prin- 
ciples of  justice  solemnly  acknowledged  must  always  have  in  international  life. 

States  assembled  in  Congress  which  determine  the  rules  of  their  conduct  for 
the  future  consequently  fulfill  a  mission  analogous  to  that  of  the  legislature. 

The  authority  of  the  rules  on  the  rights  of  belligerents  in  maritime  war,  laid 
down  at  the  Congress  of  Paris  of  1856,  those  established  in  the  Brussels  Anti- 
Slave  Trade  Conference  of  July  2,  1890,  and  others  adopted  at  The  Hague 
by  the  states  assembled  in  Congress,  have  undoubtedly  a  much  greater  au- 
thority than  those  relating  to  copyright  or  to  the  unification  of  the  metric  sys- 
tem. 

EXTRADITION   TREATIES 

913.  A  treaty  of  extradition  is  one  by  which  two  states  settle 
upon  the  rules  for  the  extradition  of  those  who  have  been  accused 
and  convicted  of  offenses  committed  in  one  of  the  states,  and  have 
taken  refuge  in  the  other. 

'914.  An  extradition  treaty,  duly  concluded,  determines  the 
reciprocal  legal  obligation  of  the  contracting  states  to  deliver  up  to 
one  another  criminals  who  have  taken  refuge  in  their  territory 
and  are  accused  or  convicted  of  one  of  the  crimes  and  offenses 
specified  in  the  convention,  and  subject  to  the  conditions  named 
in  its  stipulations. 

The  obligation  to  deliver  up  to  one  another  fugitive  criminals  must  in  gen- 
eral be  considered  as  based  on  the  duty  of  all  states  to  co-operate  in  punishing 
every  grave  offense  and  to  facilitate  the  proper  administration  of  criminal 
justice.  The  duty,  however,  cannot  be  converted  into  a  true  legal  obligation 
except  through  an  extradition  treaty. 

Compare  rules  590  et  aeq. 


376  INTERNATIONAL   LAW    CODIFIED 

915.  States  should  conclude  extradition  conventions  in  order 
thus  to  render  effective  the  duty  of  co-operating  for  the  repression 
of  offenses,  on  the  basis  of  a  perfect  reciprocity.  They  should 
adopt  provisions  best  calculated  to  facihtate  the  punishment  of 
offenses  and  the  administration  of  criminal  justice,  by  including 
in  the  treaty  any  offense  which  by  its  gravity  is  punishable  by  a 
penalty  restricting  personal  liberty  for  more  than  three  years, 
excepting  only  political  offenses  and  those  connected  with  them. 

916.  The  legal  obligation  of  extradition,  so  far  as  it  is  based  on 
treaty,  exists  only  from  the  day  the  convention  becomes  operative 
and  applies  only  to  offenses  specifically  stipulated  in  the  treaty 
and  committed  after  it  has  come  into  force. 

We  stress  the  legal  obligation  that  has  a  treaty  as  its  basis.  As  to  the  right 
of  the  sovereign  to  deliver  up  offenders,  independently  of  treaty,  see  rules  591 
et  seq. 

917.  The  stipulations  of  an  extradition  treaty  may  be  restric- 
tively  interpreted  whenever  the  sovereignty  of  the  state  intends 
to  avail  itself  of  its  power  not  to  surrender  a  criminal  who  has 
taken  refuge  in  its  territory,  unless  it  is  bound  to  deliver  him  up 
in  conformity  with  the  provisions  of  the  treaty. 

The  stipulations  may,  on  the  other  hand,  be  interpreted  broadly 
when  the  state,  taking  a  better  view  of  its  duty  of  assistance  for  the 
punisliment  of  serious  offenses  wherever  committed,  seeks  to  co- 
operate in  the  administration  of  criminal  justice  rather  than  to 
favor  immunity. 

All  this  depends  on  the  manner  in  which  the  duty  of  international  justice 
and  mutual  assistance  to  repair  the  social  damage  arising  from  offenses  that 
have  no  political  character  is  understood. 

If  one  accepts  the  more  just  view,  namely,  that  the  fugitive  criminal,  when 
escaping  from  the  country  where  he  committed  the  offense,  does  not  acquire 
any  right  to  immunity,  and  that  the  sovereignty  of  the  state  where  he  took 
refuge  has  the  power  and  interest  to  punish  him  or  deliver  him  up  to  his  natural 
judge,  so  that,  by  undergoing  the  punishment  he  deserves  he  may  expiate  the 
social  damage  he  has  caused,  it  follows  that  the  extradition  treaty,  in  so  far  as 
it  specifies  the  cases  in  which  surrender  is  obligatory,  cannot  be  considered  as 
limiting  the  power  of  the  territorial  state  to  deliver  up  the  individual  accused 
of  a  common  law  offense.  It  also  clearly  follows  that  the  state  may  give  an 
extensive  interpretation  to  the  provisions  of  the  treaty. 

It  is,  therefore,  unnecessary  to  observe  literally  the  terms  of  the  extradition 
treaty.  The  observance  of  the  principles  of  justice  depends,  in  international 
relations,  on  the  manner  in  which  their  value  is  understood. 

[In  the  United  States,  inasmuch  as  a  treaty  is  the  supreme  law  of  the  land, 
a  municipal  court  acting  as  a  committing  magistrate  cannot  legally  order  the 


SPECIAL   TREATIES  377 

surrender  of  a  fugitive  to  a  foreign  country  on  requisition  for  a  crime  not  men- 
tioned in  the  treaty,  or  in  any  case  in  the  absence  of  a  treaty.  The  United 
States  does  not  make  demands  for  the  surrender  of  fugitive  criminals  in  the 
absence  of  a  treaty  or  for  any  other  than  the  enumerated  offenses.  See  Moore 
on  Extradition,  v.  I,  §  42 — Transl.] 

Compare:  Fiore,  Effetti  inter nazionali  delle  sentenze  penali  dell'  estradizione, 
Turin,  1877,  and  Traite  de  droit  penal  inter-national  et  de  V extradition,  trans,  by 
Ch.  Antoine,  Paris,  Pedone-Lauriel,  1880. 

In  the  system  of  Italian  legislation,  extradition  is  not  considered  as  based 
on  treaty  (see  note  under  rule  591). 

We  consider  the  true  principles  in  this  matter  supported  in  article  4  of  the 
extradition  convention  between  Italy  and  Uruguay  of  April  14,  1879,  which 
reads  as  follows: 

"The  high  contracting  parties  consider  as  enunciative  and  not  limitative 
(the  Hst  of  crimes)  and  therefore  recognize  the  power  to  request  and  to  grant, 
by  reciprocity,  the  extradition  of  individuals  accused  or  convicted  of  other 
crimes  not  enumerated  in  the  present  convention,  provided  they  are  such 
upon  which  the  legislation  of  the  two  countries  visits  a  corporal  or  infamous 
punishment.  In  that  case,  the  action  of  the  two  governments  is  discretionary 
and  optional." 


CONVENTIONS  OF  WAR  AND  TREATIES  OF  PEACE 

918.  Conventions  of  war  are  those  concluded  between  belliger- 
ents to  regulate  an  act  or  relation  existing  between  them  during 
war. 

A  treaty  of  peace  is  a  convention  by  wliich  the  belligerents  stipu- 
late the  conditions  upon  which  they  terminate  the  war. 

The  rules  governing  these  conventions  and  treaties  will  be  developed  in 
Book  IV. 

OBLIGATIONS   ARISING   IN   THE   ABSENCE    OF   CONVENTION 

919.  International  obligations  may  arise  between  states  in  the 
absence  of  any  convention,  by  reason  of  acts  accomplished  by  one 
of  them  or  of  relations  arising  out  of  a  given  state  of  facts  for  which 
they  are  responsible. 

920.  A  state  which,  by  unilateral  act,  has  assumed  an  interna- 
tional obligation  is  bound  to  carry  out  what  it  has  voluntarily 
undertaken  to  do  or  not  to  do,  so  long  as  it  does  not  revoke  the 
act  by  which  it  bound  itself. 

Examples  of  obligations  arising  out  of  a  unilateral  act  are  not  lacking. 

The  Italian  legislature,  by  article  211  of  tlie  Merchant  Marine  Code,  has 
a.ssumed  the  international  obligation  to  abstain  from  the  right  of  capturing 
the  merchant  ships  of  an  enemy,  with  respect  to  all  states  wliich,  when  the  war 


378  INTERNATIONAL   LAW   CODIFIED 

breaks  out,  declare  before  the  commencement  of  hostilities  that  they  also  re- 
nounce that  right  with  respect  to  Italian  merchant  ships. 

Thus,  the  conventional  obligation  to  consider  the  private  property  of  their 
respective  citizens  inviolate,  contracted  between  Italy  and  the  United  States 
by  the  treaty  of  February,  26,  1871,  article  11,  is  assumed,  by  unilateral  act, 
with  respect  to  all  states  which,  before  commencing  hostilities  with  Italy, 
shall  have  declared  their  intention  to  consider  Italian  property  on  the  high 
seas  immune  from  capture. 

It  is  evident  that  the  unilateral  obligation  assumed  by  the  Italian  govern- 
ment towards  all  states  by  reciprocity  has  as  much  value  as  that  arising  out  of 
the  treaty  with  the  United  States. 

The  obligation  assumed  by  Italy,  by  the  law  of  May  13,  1871,  concerning 
the  prerogatives  of  the  Sovereign  Pontiff  and  of  the  Holy  See,  with  respect 
to  all  states  that  have  taken  cognizance  thereof,  has,  as  regards  those  states, 
the  same  legal  value  as  an  international  treaty  concluded  with  them  and  im- 
plies the  obligation  to  observe  the  rules  sanctioned  by  that  law,  so  long  as 
Italy,  as  is  its  privilege,  does  not  repeal  the  statute. 

Compare  rule  25. 

The  same  might  be  said  of  the  rules  of  international  law  relating  to  the  exe- 
cution of  foreign  judgments,  embodied  in  the  Italian  Code  of  Civil  Procedure, 
title  XII,  articles  941 ,  ei  seq.  The  resulting  obligation  of  the  Italian  government 
to  assure  the  execution  of  the  judicial  decisions  of  foreign  courts  in  its  territory 
will  last  so  long  as  the  Italian  Code  of  Civil  Procedure  is  not  amended  or 
repealed. 

921.  An  international  obligation,  independently  of  any  conven- 
tion, may  arise  from  a  legal  or  illegal  act  of  a  state,  which  should 
be  considered  as  obligated  towards  private  citizens  in  all  matters 
arising  out  of  such  acts  as  affect  property  relations,  according  to 
international  law. 

Some  authorities  admit  that  obligations  between  state  and  state  may  arise 
out  of  quasi-contract.  See,  among  others,  Heffter  {Droit  internal.,  §  100) 
citing  in  support  of  his  opinion  Neumann,  Jus  princ.  priv.  de  pact,  et  contract, 
§§  824  et  seq.  He  gives  as  an  example  the  payment  of  money  not  due,  the 
administration  of  the  affairs  of  a  state  without  opposition  by  others,  and  the 
acceptance  and  administration  of  the  guardianship  of  a  minor  .sovereign. 

It  does  not  really  seem  to  us  that  the  principles  applicable  to  civil  obliga- 
tions derived  from  quasi-contract  find  a  just  application  with  regard  to  inter- 
national obligations  between  states.  It  may  happen  that  the  representative 
of  a  state  has  made  a  payment  not  due  and  that  this  gives  rise  to  an  obligation 
of  the  payee  state  to  make  restitution;  but  that  obligation  has  not  the  true 
character  of  an  international  obligation.  It  cannot,  indeed,  be  maintained 
that  any  obligation  of  a  state  has  the  character  of  an  international  obligation 
merely  because  the  subject  of  the  obligation  is  a  state.  The  state,  as  a  matter 
of  fact,  has  a  dual  personality,  a  political  and  a  legal  personality,  and  therefore 
the  capacity  to  assume  an  international  obligation  and  an  obligation  according 
to  civil  or  private  law.  The  international  obligation  of  the  state,  properly 
speaking,  is  that  which  affects  its  international  personality,  which  concerns  it  as 
a  person  of  the  Magna  civitas  and  is  based  on  international  law.  We  do  not  deny 
that  the  state  may  be  bound  by  quasi-contract  as  well  as  by  contract;  but  the 


SPECIAL   TKEATIES  379 

obligation  arising  out  of  contract  or  quasi-contract  gives  rise  to  a  contractual 
or  quasi-contractual  obligation,  and  not  to  an  international  one.  That  rela- 
tion affects  the  legal  personality  of  the  state,  and  not  its  international  per- 
sonality. The  obligation  must,  consequently,  be  fi.xed  and  governed  in  accord- 
ance with  the  principles  which  relate  to  obligations  arising  out  of  contract  and 
not  those  derived  from  a  treaty  or  from  acts  of  the  state,  which  may  give  rise 
to  international  obligations  independently  of  express  and  written  conventions. 
The  international  obligation  may  arise  from  a  lawful  act,  when  the  sover- 
eignty, in  the  lawful  exercise  of  its  powers  within  the  state,  has  injured  a 
foreign  state  or  its  citizens.  In  such  case,  the  international  obligation  of  the 
state  to  make  amends  for  the  damage  arises,  and  it  is  founded  on  its  interna- 
tional responsibility,  which  affects  its  international  personality.  This  may 
occur,  for  example,  during  a  civil  war  or  a  revolution  within  a  country,  when 
the  sovereign,  in  the  legal  exercise  of  his  powers,  injuries  foreign  states  or 
individuals. 

922.  Any  act  committed  by  a  state  in  violation  of  the  principles 
of  international  law  should  be  considered  unlawful  on  the  part  of 
the  culpable  state.  In  such  case  an  international  obligation  arises 
on  the  part  of  that  state  to  repair  any  injury  caused  by  the  act. 

Compare  rules  596  et  seq.  on  the  international  responsibility  of  the  state. 


CONVENTIONS  BETWEEN  THE  HE.\D  OF  THE  CHURCH  AND  THE  STATE. 

CONCORDATS 

923.  The  uame  "  concordat  "  is  given  to  a  convention  concluded 
between  the  head  of  the  Church  and  the  State  to  regulate  their 
relations  and  the  exercise  of  their  respective  powers  in  regard  to 
certain  matters  of  common  interest. 

Although  the  relations  between  the  State,  as  a  political  institution,  and  the 
Church,  as  a  religious  one,  should  be  regarded  as  established  on  a  basis  of 
reciprocal  independence,  yet  the  supreme  ecclesiastic  power,  in  so  far  as  it  lays 
down  the  rules  of  discipline  and  supervises  the  exercise  of  worship,  necessarily 
enters  into  relation  with  the  territorial  law;  and  since  the  two  powers,  in  the 
development  of  their  functions  and  the  exercise  of  their  respective  rights, 
come  into  contact  with  one  another,  there  is  no  reason  why  they  should  not, 
in  common  agreement,  determine  the  rules  governing  their  relations  by  a 
convention,  which,  by  reason  of  its  special  object,  is  called  a  "concordat." 

Compare  rules  723,  729,  et  seq. 

924.  The  concordat  has  not  the  character  of  a  treaty,  but  of  an 
agreement  concluded  between  two  independent  powers  on  a  matter 
of  public  interest.  The  general  rules  relating  to  treaties  may, 
however,  by  analogy  be  applied  to  such  an  agreement  in  so  far  as 
the  substantial  refjuisites  for  the  validity  and  execution  of  the 
assumed  obligations  are  concerned. 


380  INTERNATIONAL   LAW    CODIFIED 

Compare  rule  731. 

It  being  granted  that  the  term  treaty  may  he  ascribed  only  to  the  written 
agreement  of  a  state,  which  is  a  political  institution  and  which,  by  that  act,  as- 
sumes an  obligation  towards  another  state,  it  is  evident  that  it  is  not  possible 
to  denominate  as  a  treaty  an  agreement  concluded  between  one  reigning  house 
and  another  to  regulate  their  personal  interests,  or  between  a  government  and 
some  association  for  an  object  of  public  interest;  nor  can  the  name  of  treaty 
be  assigned  to  an  agreement  between  the  head  of  the  Church,  which  is  not  a 
pohtical  institution,  and  the  head  of  the  State,  concerning  their  functions  in 
their  reciprocal  relations. 

It  is  equally  clear  that  since  every  form  of  obligation  must  have  certain  req- 
uisites of  substance  and  form,  that  are  indispensable  both  in  an  agreement 
concluded  between  private  persons  and  between  states,  such  requisites  are 
hkewise  essential  in  the  conventions  drawn  up  between  the  head  of  the  Church 
and  the  head  of  the  State. 

Moreover,  since  the  object  of  such  agreements  is  always  a  matter  of  public 
interest,  it  is  logical  to  apply  to  them  by  analogy  the  general  principles  of  law 
which  govern  treaties  rather  than  those  which  apply  to  contracts  between 
private  persons.  It  should  be  noted,  however,  that  in  applying  these  princi- 
ples, it  would  not  be  correct  to  admit  an  exact  comparison  between  the  obliga- 
tions assumed  by  virtue  of  a  treaty  between  states  and  those  derived  from  a 
concordat  concluded  between  the  Pope  and  the  chief  executive  of  a  state. 

Compare  rule  734  and  the  note  under  rule  735. 

[The  Nicaraguan  Mixed  Claims  Commission  in  passing  upon  a  claim 
brought  by  the  Bishop  of  Nicaragua  for  violation  of  the  Concordat  entered 
into  by  the  Republic  of  Nicaragua  and  the  Holy  See  in  1861,  held  that  the 
Concordat  could  not  be  regarded  as  an  international  treaty,  but  as  a  contract- 
ual arrangement  which  ceases  to  bind  either  party  if  one  of  them  repudiates 
the  obligation.  See  9  American  Journ.  of  Int.  Laio  (Oct.,  1915),  page  869. — 
Transl.] 

925.  A  lawful  object  of  a  concordat  is  the  regulation  of  the  pub- 
lic functions  of  the  head  of  the  State  and  the  head  of  the  Church, 
provided  this  does  not  involve  a  violation  of  the  independence  of 
the  two  powers  in  the  exercise  of  their  respective  international 
rights. 

Compare  rules  724  et  seq. 

Originally  concordats  were  compromises  between  the  Pope,  as  spiritual  head 
of  the  Church,  and  the  sovereign,  as  head  of  the  State,  rather  than  a  regulation 
of  their  respective  pubUc  functions  on  the  basis  of  their  reciprocal  indepen- 
dence. 

Beginning  with  the  first  Concordat  concluded  at  Worms  in  1122  between 
Pope  Calixtus  II  and  Henry  V,  the  Emperor  of  Germany,  up  to  those  concluded 
in  our  time,  it  will  be  seen  that  they  sometimes  represent  an  invasion  of  the 
political  authority  with  a  sacrifice  of  the  independence  of  the  church,  and 
sometimes  reciprocal  concessions  and  compromises.  Article  3  of  the  Concordat 
of  1801  between  the  Pope  and  Napoleon  shows  most  clearly  the  nature  of  such 
agreements. 

Compare:  Orlando,  Sub  V°  Concordalo,  in  Digesto  italiano;  Calvo,  Droit 
internat.,  4th  ed,  §  1605;  Bluntschli,  Drait  internat.  codifi6,  rule  443;  Bonfils, 
Manuel  de  droit  international  public,  §§  896  et  seq. 


SPECIAL   TREATIES  381 

926.  When  duly  concluded,  the  concordat  must  be  deemed 
binding  between  the  parties  that  have  signed  it,  until  revoked. 

Nevertheless,  in  so  far  as  it  regulates  the  relations  of  Church  and 
State  in  matters  of  public  interest,  it  must  be  subject  to  the  political 
constitution  and  to  the  public  law  of  the  state  in  everything  in- 
volving its  validity,  authority  and  revocability,  and  it  must  bear 
the  consequences  which  arise  from  changes  which  may  occur  in  the 
political  constitution  with  respect  to  matters  of  public  law. 

Taking  into  account  the  preceding  rule  and  the  true  nature  of  the  conven- 
tions conchided  between  the  head  of  the  Church  and  the  sovereign  of  the 
state,  it  follows  that  any  difference  as  to  the  legal  value  of  the  concordat,  from 
the  viewTDoint  of  its  legal  efficacy  in  regulating  the  relations  between  the  ec- 
clesiastical and  the  civil  authorities  must  be  decided  in  conformity  with  the 
constitutional  law  of  the  state.  One  should,  in  fact,  determine  according  to 
that  law  the  scope  of  the  concordat  and  the  limitations  upon  the  capacity  of 
the  state  to  conclude  conventions  with  the  head  of  the  Church  and  to  regulate 
their  mutual  relations. 

It  is  also  clear  that  since  the  changes  which  have  occurred  in  the  political 
constitution  of  a  state  imply  necessary  changes  in  all  the  rights  and  powers 
that  are  inconsistent  with  the  constitutional  law  (including  concordats,  in  so 
far  as  they  imply  the  exercise  of  public  powers  and  functions),  it  must  be  ad- 
mitted that  the  promulgation  of  new  constitutional  law  implies  the  abrogation 
ipso  jure  ipsoque  facto  of  incompatible  conventions  previously  concluded. 

Moreover,  since  concordats  do  not  give  rise  to  international  obligations 
properly  speaking,  such  as  those  that  arise  from  treaties,  one  cannot  admit 
with  respect  to  concordats,  as  in  the  case  of  treaties,  the  principle  of  succession 
in  case  of  annexation,  or  of  the  constitution  of  a  new  state  by  uniting  small 
states  (compare  rules  157  et  seq.)  In  such  matters,  indeed,  it  is  proper  to  decide 
any  controversy  by  applying  the  constitutional  law  and  seeking  what  influence 
that  law  may  have  on  the  relations  arising  out  of  conventions  concluded  prior 
to  its  coming  into  force.  In  principle,  it  cannot  be  maintained  that,  by  a  change 
in  the  international  personality  of  the  contracting  state,  any  convention  con- 
cluded between  the  church  and  a  state,  to  which  a  new  state  has  succeeded, 
should  be  considered  extinct.  It  cannot  validly  be  contended,  in  fact,  that 
because  of  the  new  political  constitution  of  a  state,  one  should  not  respect 
perfect  and  vested  rights  acquired  under  prior  public  conventions,  when  the 
respect  of  those  rights  is  compatible  with  the  new  constitution,  and  when  the 
prior  convention  or  concordat  has  not  been  expressly  abrogated.  Everything, 
therefore,  should  depend  on  the  nature  and  object  of  the  agreement  and  on  its 
compatibility  or  incompatibility  with  the  new  political  constitution  of  the 
state. 

We  cannot  here  develop  our  ideas  any  further,  because  the  question  really 
involves  public  municipal  law. 

Compare:  Scadutto,  DiriUo  ecdealiastico  vigente  in  Italia,  2d  ed.,  v.  I,  pp. 
3-5,  7-82,  110-113,  and  Orlando,  Sub.  V°  Concordalo  in  Digesto  itaUano  and  the 
authors  cited  by  him  in  the  bibliography;  Merlin,  Repertoire,  Sub  V  Concordat. 

927.  Any  matter  implying  a  violation  of  the  international  rights 
of  man  or  of  the  church  cannot  be  the  object  of  a  concordat. 


382  INTERNATIONAL   LAW   CODIFIED 

In  that  respect,  the  efficacy  of  the  concordat  must  be  determined 
in  conformity  with  the  principles  of  international  law  and  those 
which  should  govern  the  validity  of  conventions. 

The  legal  value  of  a  concordat,  as  regards  the  international  rights  of  man 
and  of  the  church,  must  be  determined  in  conformity  with  the  principles  of 
international  law.  It  cannot  be  claimed  that  the  sovereignty  of  the  state 
may  not  grant  privileges  to  a  certain  religious  faith  or  certain  powers  of  juris- 
diction to  ecclesiastical  authorities,  or,  on  the  other  hand,  that  the  head  of  the 
church  may  not  agree  to  the  intervention  of  the  political  authorities  in  the 
exercise  of  their  powers,  in  so  far  as  he  regulates  ecclesiastical  discipline  and 
worship.  But  these  are  matters  of  public  municipal  law,  and  the  efficacy  of 
the  agreements  depend  on  the  political  constitution  of  the  state. 

If,  however,  the  two  powers  should  wish,  through  agreements  concluded 
with  one  another,  to  interfere  with  the  right  of  freedom  of  worship,  as  an  in- 
ternational right  of  man,  and  if  this  should  result  in  a  struggle  which,  by  its 
form  and  intensity,  could  be  considered  as  a  disturbance  of  the  international 
society,  collective  intervention  would  be  justified,  in  "order  to  protect  rights 
thus  infringed  and  put  an  end  to  such  a  manifest  violation  of  international  law. 

Such  would  be  the  case  if,  through  a  concordat,  a  state  sought  to  legitimate 
the  violations  contemplated  in  rules  652  and  653.  The  same  would  be  true  if 
the  sovereignty  of  the  state  in  any  way  whatever  imposed  on  the  head  of  the 
church  the  obligation  to  renounce,  by  concordat,  his  international  rights 
(rules  73,  706,  727  et  seq.).  In  that  case  third  states  would  secure  the  right 
to  intervene  and  be  protected  (rules  561  and  732.) 


BOOK  THREE 

PROPERTY  IN  ITS  RELATIONS  WITH  INTER- 
NATIONAL LAW 


GENERAL  PRINCIPLES 

928.  International  law  must  regulate  the  acquisition,  enjoy- 
ment and  exercise  of  rights  over  corporeal  and  incorporeal  things, 
whenever  the  interests  of  international  society  are  involved. 

929.  No  right  over  property  can  be  considered  as  absolute  and 
unlimited;  but  it  must,  so  far  as  its  acquisition,  enjoyment  and 
exercise  are  concerned,  be  regarded  as  subordinated  to  the  higher 
principle  that  it  does  not  entail  any  injury  to  the  general  interests 
of  international  society. 

Whatever  the  nature  of  the  property  which  may  constitute  the  object  of 
the  right,  its  titulary  or  owner  must,  for  the  acquisition,  exercise  and  enjoyment 
of  such  right,  submit  to  the  limitations  which  have  their  origin  in  the  exigencies 
of  life  in  society  and  in  the  superior  necessity  of  not  violating  the  general 
interests  of  international  society. 

International  law  must  regulate  every  relation  which  operates  in  the  Magna 
civitas.  Therefore,  it  must  be  admitted  that  international  law  must  govern 
the  acquisition,  enjoyment  and  exercise  of  every  right  over  things,  in  so  far  as 
the  act  performed  by  the  titulary  or  owner  of  the  right  may  be  related  to  the 
general  interests  of  other  states  or  to  the  collective  interests  of  peoples. 

930.  Property,  with  respect  to  its  legal  condition,  may  be  divided 
into  the  following  classes: 

(a)  Common,  according  to  natural  law; 

(6)  In  the  dominion  or  subject  to  the  supreme  power  of  the 
state,  according  to  international  law; 

(c)  Public  and  corporeal  or  incorporeal,  according  to  the  munic- 
ipal laws  of  each  country; 

(d)  Private  and  belonging  to  individuals  or  to  legal  persons, 
who  must  be  deemed  owners  or  possessors  according  to  civil  law. 


384 


TITLE  I 

OF  COMMON  PROPERTY 

THINGS   WHICH   MUST   BE   DEEMED    COMMON 

931.  Common  property  is  that  which  everybody  may  enjoy, 
and  which  cannot  be  the  object  of  an  exclusive  right  on  the  part 
of  the  state  or  of  individuals. 

Examples  of  common  property  are: 

(a)  The  high  seas; 

(6)  Navigable   international   rivers; 

(c)  Straits  which  unite  two  connecting  seas. 

932.  Any  state  that  should  assert  an  exclusive  right  over  com- 
mon property  or  should  commit  an  act  of  dominion  over  it, 
would  violate  international  law,,  and  its  arbitrary  acts  with  respect 
thereto  could  not  be  legitimated  by  immemorial  usage,  by  pre- 
scription, or  by  any  other  title  whatsoever. 

LIBERTY    OF   THE    HIGH   SEAS 

933.  The  high  seas  are  constituted  by  all  the  waters  that  lie 
beyond  the  jurisdictional  limits  of  any  state.  No  part  of  the  high 
seas  may  be  dominated  l)y  any  state;  they  must  be  considered  as 
open  to  the  common  use  of  the  whole  world.  Every  one,  there- 
fore, may  freely  use  them  in  all  their  extent,  observing,  how- 
ever, the  rules  of  international  law  that  must  govern  the  enjoy- 
ment of  common  property  and  the  exercise  of  rights  over  it. 

The  liberty  of  the  high  seas  implies  the  liberty  of  navigation 
and  of  freely  taking  submarine  products  by  fishing. 

It  is  the  duty,  however,  of  those  who  navigate  the  sea  to  comply 
with  the  international  rules  relating  to  navigation. 

The  rules  relating  to  navigation,  either  on  the  high  seas  or  in 
territorial  waters,  will  be  discussed  hereafter. 

934.  Any  claim  of  dominion  over  any  portion  whatever  of  tlio 

385 


386  INTERNATIONAL  LAW  CODIFIED 

high  seas,  and  Hkewise  any  exercise  of  jurisdiction  of  vessels  of 

war  over  ships  that  do  not  belong  to  the  navy  or  to  the  merchant 

marine  of  the  state,  subject  to  the  special  stipulations  of  treaties, 

must  be  considered  contrary  to  the  absolute  liberty  of  the  high 

seas. 

Some  publicists  have  maintained  that  as  any  vessel  of  war  dominates  the 
waters  that  surround  her  within  gun  shot,  we  might  hold  that  within  this  per- 
imeter, waters  should  be  deemed  in  the  legal  possession  of  the  vessel.  But  this 
opinion  is  not  admissible,  according  to  true  principles,  since  common  property 
absolutely  lacks  the  possibility  of  being  either  as  a  whole  or  in  part  the  object 
of  a  right.  Hence  no  right  over  the  whole  or  over  a  part  of  such  common 
property  may  be  acquired  or  retained  by  force. 

935.  No  war  vessel  on  the  high  seas  can,  except  on  serious  and 
well-founded  grounds,  compel  a  ship  saiHng  under  the  flag  of  the 
state  to  which  she  belongs  to  stop  in  order  to  verify  her  nationahty 
or  to  subject  her  to  an  examination  by  megaphone.  Any  act  of 
sovereignty  and  jurisdiction  unduly  exercised  must,  in  general,  be 
considered  as  a  violation  of  the  absolute  principle  of  the  liberty  of 
the  seas  and  involve  the  responsibility  of  the  commander  of  the 
war  vessel. 


INQUIRY   INTO  THE   NATIONALITY  OF  A   VESSEL 

936.  The  flag  carried  by  a  merchant  ship  must  be  considered 
prima  facie  as  the  distinctive  token  of  its  nationahty  and,  conse- 
quently, of  the  jurisdiction  to  which  she  must  be  deemed  subject. 
A  war  vessel  may,  by  hoisting  her  flag  to  indicate  her  nationality, 
request  the  merchant  ship  she  meets  to  hoist  her  own  flag,  and 
compel  her  to  do  so  m  case  of  non-compliance  by  firing  a  blank 
shot,  and  this  failing,  a  cannon  shot,  but  without  seeking  to  hit 
her. 

937.  When  the  war  vessel  is  in  serious  doubt  as  to  the  nationahty 
indicated  by  the  flag,  she  may,  in  order  to  verify  the  point,  call  the 
ship  to  parley,  requesting  her  to  answer  the  questions  put  to  her 
by  megaphone  or  otherwise,  but  without  compelling  her  to  deviate 
from  her  course. 

If,  following  this  interpellation,  the  commander  of  the  war 
vessel  is  still  in  serious  doubt  as  to  the  nationality  indicated  by  the 
flag,  he  may  compel  the  vessel  to  stop  in  order  to  verify  her 
papers;  but  he  is  bound,   both  in   compelHng  her  to  stop  and 


COMMOJ^    PROPERTY  387 

verifying  her  papers,  to  proceed  with  moderation  and  tact  as 
indicated  hereafter  (rule  947). 

The  nationality  of  a  ship  always  determines  the  jurisdiction  to  which  she  is 
subject  and  the  privileges  she  must  enjoy  by  reason  of  the  fact  that  she  belongs 
to  this  or  that  state.  It  nmst,  therefore,  be  conceded  as  a  rule  of  "common  " 
law  that  every  ship  must  have  a  nationality  which  she  is  boimd  to  estabhsh. 
Consequently,  when,  owing  to  exceptional  circumstances,  there  is  ground  to 
doubt  the  nationaUty  asserted  by  the  flag,  it  ought  to  be  permissible  to  pro- 
ceed to  the  verification  of  her  nationality,  but  with  moderation  and  without 
abuse  of  the  power. 

Thus,  for  instance,  within  the  zone  fixed  by  the  General  Act  of  Brussels  of 
July  12,  1890,  the  right  of  search  is  rccij)rocally  admitted  over  all  vessels  be- 
longing to  the  nationality  of  the  signatory  or  adhering  states,  in  order  to  ascer- 
tain whether  such  vessels  are  engaged  in  the  slave  trade.  Nevertheless,  this 
fight  cannot  be  exercised  with  respect  to  French  ships,  as  France,  in  ratifying 
the  Act  of  Brussels,  made  reservation  as  to  articles  XXI,  XXII,  XXIII,  XLII 
and  LXI.  Now  it  is  evident  that  in  order  to  decide  whether  or  not  a  ship  may 
enjoy  the  privilege  of  French  ships,  it  is  necessary  to  ascertain  whether  or  not 
the  ship  met  within  the  zone  where  search  is  allowed,  has  French  nationahty, 
and  in  that  regard  the  mere  fact  of  flying  the  French  flag  cannot  be  considered 
decisive.  It  is  necessary  that  she  present  her  sea-letter  or  passport  (Ade  de 
fraiicisation)  which  determines  her  nationality,  and  therefore  the  right  of  veri- 
fying that  document  should  be  conceded  when  the  nationaUty  displayed  by 
the  French  colors  may  be  considered  doubtful. 

Compare  the  instructions  of  1867  to  French  cruisers  for  the  verification  of 
nationahty  and  the  similar  instructions  to  British  cruisers  in  1891,  with  respect 
to  their  attitude  towards  ships  flying  the  French  flag.  The  latter  instructions 
were  communicated  December  31,  1891,  to  the  Prince  de  Chimay,  Belgian 
Minister  for  Foreign  Affairs. 

VISIT  AND  SEARCH   ON  THE   HIGH  SEAS 

938.  Examination  as  to  the  nature  of  the  cargo  and  search  may- 
be admitted  only  in  time  of  war  and  outside  the  territorial  waters 
of  neutral  powers,  while  observing  the  rules  relating  to  the  exer- 
cise of  this  belligerent  right. 

In  time  of  peace,  the  inspection  of  the  ship's  papers  and  search 
on  the  high  seas  may  be  justified  by  way  of  exception: 

(a)  With  respect  to  vessels  committing  piracy  or  open  to  serious 
suspicion  thereof; 

(6)  With  regard  to  ships  engaged  in  the  slave  trade  or  in  the 
importation  of  arms,  ammunition  or  spirituous  liquors  into 
Africa,  complying,  however,  with  the  rules  laid  down  in  the  Act 
concluded  at  Brussels  on  July  2,  1890,  even  in  so  far  as  it  deter- 
mines the  zone  within  whidi  siuli  exceptional  powers  may  be 
exercised : 


388  '  INTERNATIONAL   LAW   CODIFIED 

(c)  With  regard  to  ships  caught  in  the  act  of  cutting  or  damaging 
a  submarine  cable,  or  giving  rise  to  serious  suspicions  of  an  attempt 
on  their  part  wholly  or  partially  to  interrupt  interoceanic  commu- 
nications. 

In  such  case,  the  conmiander  of  the  war  vessel  may  undertake  the 
necessary  examination  to  establish  the  offense  or  attempted  offense 
and  to  seize  the  ship,  mentioning  in  his  log  book  all  the  circum- 
stances justifying  his  intervention. 

POWERS   WITH    RESPECT   TO    A   VESSEL   ENGAGED    IN    PIRACY 

939.  The  commander  of  a  war  vessel  which,  on  the  high  seas, 
meets  a  ship  engaged  in  piracy  or  open  to  suspicion  thereof,  and 
compels  her  to  stop,  may  proceed  to  the  examination  necessary  to 
establish  the  true  character  of  the  ship. 

940.  The  right  of  jurisdiction  granted  to  the  commander  of  a  war 
vessel  with  respect  to  a  ship  suspected  of  piracy  which  he  meets 
on  the  high  seas  must,  on  principle,  be  considered  as  lunited  in  pro- 
portion to  the  degree  of  basis  for  suspicion,  and  it  should  in  no 
way  be  abused. 

He  is,  therefore,  bound  to  proceed  with  caution  with  the  exam- 
ination necessary  to  ascertain  the  true  character  of  the  vessel  and 
to  refrain  from  anj^  act  not  warranted  by  the  circumstances 
and  which  might  cause  him  to  be  suspected  of  having  sought  to 
interfere  with  the  liberty  of  navigation. 

941.  When,  as  a  result  of  his  examination,  the  commander 
ascertains  that  the  vessel  is  engaged  in  piracj^  or  that  she  is  open 
to  suspicion  thereof,  he  may  seize  her  and  compel  her  to  follow  the 
war  vessel  to  be  delivered  up  to  the  competent  authorities  for 
trial  on  the  charge  of  piracy. 

Compare  rules  301  et  seq.,  relating  to  criminal  jurisdiction  with  regard  to 
pirate  ships. 

942.  The  commander  who  has  seized  a  ship  engaged  in  piracy 
or  suspected  thereof  must  mention  in  his  log  book  the  circmn- 
stances  on  which  his  action  was  based. 

Should  it  afterwards  appear  in  the  trial  that  he  had  abused  the 
power  vested  in  him,  he  is  to  be  held  responsible  for  his  acts  and 
may  be  compelled  to  pay  damages,  taking  account  of  the  circum- 
stances and  of  the  degree  of  fault  of  the  ship  in  giving  rise  to  a 


COMMON   PROPERTY  oHO 

justifiable  suspicion  and  to  the  action  of  the  commander  in  ascer- 
taining the  character  of  the  ship. 

943.  A  merchant  vessel  attacked  by  a  pirate  ship  always  has  the 
right  to  defend  herself  by  force,  and  if  she  succeeds  in  capturing 
her,  she  may  take  her  to  the  first  accessible  port  and  deliver  her 
over  to  the  maritime  authorities  in  order  that  justice  may  take  its 
course. 

EXCEPTIONAL    PRINCIPLES    FOR    THE    SUPPRESSION    OF    THE    SLAVE 

TRADE 

944.  The  principle  of  the  liberty  of  the  high  seas  cannot  be  re- 
garded as  violated  because,  in  order  to  suppress  the  slave  trade,  the 
signatory  states  of  the  General  Anti-slave  Act  of  July  2,  1890,  have 
given  to  their  respective  war  vessels  the  power  of  jurisdiction  over 
the  non-territorial  waters  of  Africa  and  the  regions  where  slavery 
is  tolerated,  so  as  to  suppress  the  unlawful  traffic  in  negroes. 

945.  The  exceptional  powers  attributed  under  that  Act  to  ships 
of  war  with  regard  to  their  respective  merchant  ships  on  the  basis 
of  a  strict  reciprocity  are  founded  upon  the  Brussels  Act  of  July  2, 
1890.  This  convention  is  binding  only  upon  the  states  which,  after 
signing  it,  ratified  it  or  subsequently  adhered  to  it. 

These  powers,  which  constitute  a  derogation  from  the  "com- 
mon" law,  must  be  considered  as  specifically  set  forth  in  the  clauses 
of  that  convention  and  must  be  exercised  in  conformity  therewith. 

The  Anti-slave  Act  of  July  2,  1890,  was  signed  by  the  following  states: 
Austria-Hungary,  Belgium,  Congo,  Denmark,  France,  Germany,  Great 
Britain,  Italy,  Netherlands,  Norway,  Persia,  Portugal,  Russia,  Sweden,  Tur- 
key, United  States  and  Zanzibar. 

The  exchange  of  ratifications  took  place  at  Brussels,  by  the  protocol  of 
January  2,  1892  {Trallati  relaiivi  alV  Africa,  v.  I,  p.  363).  France,  however, 
made  reservation  with  regard  to  articles  XXI,  XXII,  XXIII,  XLII  and  LXI, 
and  consequently,  with  respect  to  ships  of  French  nationality,  the  exercise 
of  exceptional  powers,  such  as  the  examination  of  the  manifest  and  visit,  is 
excluded  and  the  special  treaties  (londuded  by  France  with  each  of  the  signa- 
tory powers  must  be  con.sidered  as  applicable.  The  General  Act  was  subse- 
quently completed  by  the  conventions  of  June  8,  1899,  and  of  November  3, 
1906,  also  signed  at  Brussels,  regarding  the  traffic  in  spirituous  liquors  in 
Africa. 

So(;  concerning  all  these  acts  the  volumes  published  by  the  General  Office  of 
Colonial  Afl'airs  of  tho  Kingdom  of  Italy  (Documenii  relaiivi  all'  Africa),  1906. 

946.  The  princii)le  of  the  liberty  of  the  seas  must  be  regarded 
as  violated,  if  the  states  signatory  to  the  Anti-slave  Act  of  1890, 


390  INTERNATIONAL    LAW    CODIFIED 

in  order  better  to  attain  their  noble  purpose,  should  assimilate 
the  slave  trade  to  piracy  or  assume  any  right  of  jurisdiction  what- 
ever over  the  merchant  vessels  of  other  states  that  have  not  signed 
the  treaty  or  subsequently  adhered  thereto. 

Everybody  must  recognize  that  the  negro  trade  constitutes  the  gravest 
assault  upon  the  rights  of  human  beings  and  that  the  suppression  of  such  a 
trade  must  be  regarded  as  an  act  of  international  justice.  It  must  be  admitted, 
nevertheless,  that  the  repressive  measures  ought  in  principle  to  be  within  the 
exclusive  competence  of  each  state,  which  possesses  the  right  to  subject  its 
merchant  vessels  to  the  jurisdiction  of  its  war  vessels,  prescribing  penal  sanc- 
tions for  the  suppression  of  this  unlawful  traffic.  Acts  of  jurisdiction  of  the 
war  vessels  of  a  state  over  foreign  merchant  vessels  can  be  justified  only  by 
virtue  of  a  treaty  conferring  such  right  subject  to  reciprocity  to  the  respective 
war  vessels  of  the  signatory  powers.  Any  act  of  jurisdiction  not  based  on  a 
treaty,  notwithstanding  its  praiseworthy  purpose,  must  accordingly  be  re- 
garded as  opposed  to  the  princii)le  of  the  liberty  of  the  sea  and  hence  to  the 
independence  of  states. 

This  idea  is  formulated  in  article  XLV  of  the  Act  of  Brussels,  which  reads,  in 
translation:  "The  examination  of  the  cargo  or  search  can  only  take  place  in 
the  case  of  vessels  sailing  under  the  flag  of  one  of  the  powers  which  have  con- 
cluded or  may  subsequently  conclude  the  special  conventions  provided  for  in 
article  XXII  and  in  accordance  with  the  provisions  of  such  conventions." 


METHOD    OF   PROCEDURE    FOR   INSPECTION   AND   SEARCH 

947.  The  commander  of  the  war  vessel  may  resort  to  coercive 
measures  in  order  to  proceed  to  the  inspection  of  the  ship's  papers 
and  to  visit  in  the  cases  provided  for  in  the  foregoing  rules,  only 
when  the  merchant  vessel  does  not  promptly  respond  to  the  re- 
quest to  stop.  In  that  case,  he  may  support  his  demand  by  firing 
a  gun  with  successive  blank  shots  and  if  the  vessel  does  not  stop, 
he  may  direct  the  shots  first  at  the  sails,  then  at  the  masts,  and 
finally,  if  the  vessel  should  persistently  refuse  to  obey,  at  the  hull, 
until  the  vessel  heeds  the  warning  and  heaves  to. 

948.  As  soon  as  the  vessel  has  stopped,  as  a  result  of  the  warning 
or  the  coercive  measures,  the  commander  may  personally  under- 
take the  inspection  of  the  ship's  papers  and,  if  necessary,  search 
her,  or  charge  with  that  duty  an  officer  delegated  by  him,  who  must 
be  accompanied  by  another  officer  who,  in  case  of  need,  may  bear 
witness  to  what  has  taken  place  during  the  visit. 

949.  The  boarding  officer  will  undertake  the  inspection  of  the 
papers  and  if  necessary,  the  search  of  the  vessel  in  the  manner  least 
vexatious,  bearing  in  mind  the  instructions  of  the  commander. 


COMMON    PROPERTY  391 

Any  unjustified  delay  must  always  be  avoided  and  the  vessel  be 
allowed  to  proceed  freely  on  her  way  when  prima  facie  all  reason 
for  suspicion  against  her  appears  unwarranted. 

950.  The  boarding  officer  must  first  examine  the  ship's  papers 
and  can  proceed  to  the  examination  of  the  cargo  only  when,  from 
the  papers,  there  exists  a  serious  suspicion  that  the  vessel  is  en- 
gaged in  a  trade  declared  unlawful  under  the  above-mentioned 
Act  of  Brussels  or  other  acts  which  prohibit  traffic  in  certain 
things  (spirituous  liquors,  firearms,  or  ammunition)  and  which 
admit  the  right  of  visit  and  search  as  a  measure  of  repression. 

951.  When  it  is  necessary  to  proceed  to  the  examination  of  the 
cargo,  it  can  take  place  only  on  formal  authorization  of  the  com- 
mander of  the  war  vessel  on  whom  rests  the  responsibility  therefor. 
The  examination  must  always  be  made  with  circumspection  and 
moderation,  avoiding  damage  to  the  cargo  so  as  to  prevent  just 
claims. 

952.  The  inquiry  on  the  part  of  the  war  vessel  to  ascertain 
whether  the  vessel  under  examination  is  lawfully  authorized  to 
carry  the  flag  she  is  flying,  must  take  place  in  an  appropriate  case 
under  due  observation  of  the  rules  set  forth  above  as  regards  visit 
and  search. 


SEIZURE   OF   THE   SHIP   ON   THE   HIGH   SEAS 

953.  Besides  the  ships  included  within  the  categories  mentioned 
in  paragraphs  a  and  c  of  rule  938,  any  merchant  ship,  under  the 
general  Act  of  Brussels  of  July  2,  1890,  may  be  seized: 

a.  Which,  being  liable  to  search,  shall  attempt  to  avoid  it  by 
flight  or  force; 

h.  Which  declines  to  produce  the  ship's  papers  in  a  case  where 
she  must  be  considered  bound  to  do  so,  or  which,  in  any 
manner  whatever,  has  hindered  the  work  of  the  officials 
who,  under  the  terms  of  the  Brussels  Act,  are  charged  with 
the  duty  of  examining  these  papers; 

c.  Which  has  no  ship's  papers  or  whose  papers  present  grave 

irregularities; 

d.  Which    are    unlawfully   engaged    in    transporting    firearms, 

ammunition,  or  si)irituous  liquors  intended  for  countries 
or  coasts  where  such  traffic  is  prohibited  by  treaty,  either 


392  INTERNATIONAL  LAW   CODIFIED 

when  the  prohibited  goods  are  on  board  or  when  it  is  proved 
that  the  ship  has  jettisoned  such  goods  before  submitting 
to  the  search; 
e.  Which  is  not  duly  authorized  to  sail  under  the  flag  she  flies 
and  is  therefore  guilty  of  a  fraudulent  use  of  the  flag. 

OFFICIAL   MINUTES   AND   RESPONSIBILITY 

954.  In  whatever  case  commanders  of  war  vessels  exercise  on 
the  high  seas  the  exceptional  powers  prescribed  in  the  foregoing 
rules,  they  are  bound  to  draw  up  an  official  statement  of  the  acts 
performed  and  of  all  the  circumstances  on  which  they  were  based 
and  to  mention  the  declarations  and  protests  of  the  captain  or 
commander  of  the  ship  subjected  to  inquiry,  inspection,  search  or 
seizure,  and  to  transmit  to  the  Minister  of  Foreign  Affairs  of  their 
countr}^  a  detailed  report  which  must  serve  to  determine  the  re- 
sponsibility for  the  commander's  acts  in  the  proceeding  which 
must  be  instituted  before  the  competent  authorities  to  determine 
their  legality. 

VISIT  AND   SEIZURE   WITHIN   TERRITORIAL   WATERS 

955.  As  the  sovereign  of  a  state  enjoys  the  unquestionable  right 
of  exercising  jurisdiction  and  police  powers  within  the  limits  of  its 
territorial  waters,  it  follows  that  he  may  regulate  commerce  and 
navigation  over  these  waters;  prohibit  therein  traffic  in  certain 
goods  (provisions,  ammunition,  spirituous  liquors,  etc.);  provide 
for  the  punishment  of  those  who  violate  such  prohibitions;  exercise 
police  powers  with  respect  to  all  foreign  ships  without  distinction 
in  territorial  waters;  and  subject  to  search  those  suspected  of 
violating  the  prescribed  laws  and  regulations. 

956.  The  surveillance,  control,  inspection  of  cargo  and  search 
within  the  limits  of  territorial  waters,  or  to  the  limit  of  the  maritime 
frontier  of  every  state,  must  be  deemed  justified  as  measures  of 
security  and  public  order  required  for  the  protection  of  the  con- 
tinental territory  and  by  the  necessity  of  preventing  contraband 
trading  or  smuggling. 

The  word  contraband  must  be  understood  in  its  general  acceptation,  that  is, 
of  a  thing  done  "contra  il  bando,"  in  other  words,  contrary  to  law  and  duly 


COMMON    PROPERTY  393 

published  preventive  regulations.  It  is,  therefore,  fiscal  contraband  to  import 
goods  in  violation  of  fiscal  laws  and  customs  regulations.  It  is  contraband  of 
war  unlawfully  to  transport  arms  and  articles  intended  for  the  enemy  in  vio- 
lation of  the  laws  of  war.  In  like  manner,  if  a  state  should  prohibit  by  law  the 
importation  of  arms  and  ammunition  in  the  countries  subject  to  its  sovereignty 
or  protectorate,  traffic  wuthin  the  territorial  waters  of  that  state  in  such  pro- 
hibited goods  must  be  designated  as  contraband. 

Compare,  for  the  basis  of  the  proposed  rules:  Calvo,  Droit  inter  national,  4th 
ed.,  V.  I,  §  383,  p.  517;  Pradier-Fodere,  Droit  inter  national,  v.  II,  §  630;  Perels, 
Droit  marilime,  French  translation,  p.  50;  Ortolan,  Droit  penal,  3d  ed,  v.  I,  p. 
390;  Faustin  Helie,  Traite  d'inslrudion  criminelle,  v.  XI,  p.  508;  British  law 
of  August  16,  1868. 

Search  within  French  territorial  waters  to  prevent  smuggling  is  admitted 
under  the  law  of  4  Germinal,  year  II,  art.  7,  title  II  and  under  that  of  March  27, 
1817,  art.  13. 

957.  Any  war  vessel  intending  to  subject  to  inquiry  and  search 
a  foreign  merchant  ship  within  territorial  waters,  must  undertake 
the  search  in  conformity  with  the  provisions  of  the  treaties  con- 
cluded by  its  government  with  the  state  to  which  the  merchant 
ship  belongs.  According  to  these  treaties,  the  assistance  of  the 
consul  may  or  may  not  be  required.  The  war  vessel,  furthermore, 
may  compel  the  merchant  ship  to  heave  to  and  may  keep  her  in 
custody  in  order  to  search  her  in  accordance  with  the  rules  of  exist- 
ing treaties. 

See  the  treaty  concluded  at  London,  December  13,  1906,  between  France, 
Great  Britain  and  Italy,  to  regulate  visit  in  territorial  waters  with  a  view  to 
suppress  the  traflBc  in  arms  in  Africa. 

958.  When  a  war  vessel  which  intends  to  subject  to  search  a 
merchant  ship  in  territorial  waters  suspected  of  contraband  trad- 
ing, has  without  avail  requested  the  ship  to  stop  and  has  com- 
menced pursuit  to  compel  her  to  heed  the  request,  she  may  con- 
tinue the  pursuit  beyond  the  maritime  belt,  provided  the  pursuit 
is  continuous,  and  use  the  coercive  measures  indicated  in  rule  947. 


PROCEEDINGS   UPON   SEIZED    SHIPS 

959.  Proceeding  against  ships  seized  in  time  of  peace  in  the  cases 
set  forth  in  the  foregoing  articles  must  be  instituted  before  the 
competent  court,  which  must  pass  upon  the  grounds  on  which  the 
seizure  was  based,  and  determine  the  penalties  incurred. 

960.  When  a  foreign  merchant  ship  has  been  arrested  in 
territorial  waters,  the  case  must  be  referred  to  an  authority  com- 


394  INTERNATIONAL   LAW   CODIFIED 

petent  under  the  law  of  the  arresting  state.  If  the  seizure  was 
made  on  the  high  seas,  the  proceedings  must  be  instituted  before 
an  authority  competent  under  the  law  of  the  flag  of  the  merchant 
ship. 

Compare  the  general  Act  of  Brussels  of  July  2,  1890,  arts.  XLIX  et  seq.  and 
that  of  Algesiras  of  April  7,  1906,  for  the  suppression  of  the  traffic  in  arms  in 
Morocco. 

NAVIGABLE   RIVERS 

961.  Navigable  rivers  passing  through  or  separating  the  terri- 
tory of  different  states  are  deemed  international  rivers  and  are 
subject  to  the  rules  that  must  govern  the  high  seas,  as  regards  the 
liberty  of  navigation  and  their  peaceful  use  for  the  needs  of  com- 
merce. These  rules  are  applicable  to  them  from  their  mouth  as 
far  down  as  they  are  navigable. 

962.  Riparian  states  must  consider  themselves  in  de  facto  com- 
munity and  none  of  them  may  to  the  prejudice  of  others  limit  the 
liberty  of  navigation  over  the  section  of  the  river  passing  through 
its  territory,  nor  interfere  with  the  freedom  of  international  com- 
merce. 

963.  It  is  the  duty  of  states  through  which  a  navigable  river 
passes  to  determine  by  common  agreement  the  rules  of  naviga- 
tion, in  order  to  assure  to  navigators  the  free  use  of  the  river  for 
the  needs  of  commerce  without  undue  restrictions. 

This  rule  is  based  on  that  laid  down  in  articles  108  and  109  of  the  treaty  of 
Vienna  of  1815,  which  read  as  follows: 

Art.  108.  "The  powers  whose  states  are  crossed  or  separated  by  the  same 
river  undertake  to  regulate  by  mutual  agreement  all  matters  related  to  the 
navigation  of  that  river." 

Art.  109.  "Navigation  over  the  entire  course  of  rivers  indicated  in  the  pre- 
ceding article  from  the  point  where  they  become  navigable  up  to  their  mouths 
is  to  be  entirely  free  and  cannot,  with  respect  to  commerce,  be  forbidden  to 
any  one." 

The  community  of  fact  which,  by  the  nature  of  things,  exists  between  ri- 
parian states,  prevents  one  of  them  from  doing  anything  contrary  to  the  pur- 
poses of  the  common  thing.  It  thus  follows  that,  as  the  river  is  an  indivisible 
whole  and  must  be  deemed  as  intended  to  serve  the  needs  of  international 
commerce,  the  liberty  of  navigation  possessed  by  all  cannot  be  limited  or 
restricted  at  the  pleasure  of  the  state  which  possesses  the  banks  of  one  of  the 
sections  of  the  river,  without  changing  the  nature  of  the  common  thing. 

Compare:  Fiore,  Dirillo  internazionale  pubhlico,  4th  ed.,  v.  II,  §§  794 
et  seq. 


I 


COMMON   PROPERTY  395 

RULES   FOR   THE   NAVIGATION   OF   INTERNATIONAL   RIVERS 

964.  The  rules  of  river  navigation  must  on  principle  be  laid  down 
in  harmony  with  the  general  interests  and  not  in  favor  exclusively 
of  the  private  interests  of  one  or  other  of  the  riparian  states. 

When  the  latter  do  not  agree  upon  the  regulations  to  be  observed 
in  navigating  the  whole  course  of  the  river,  any  of  the  riparian 
states  may  require  that  regulations  be  prepared  by  an  international 
commission  in  conformity  with  the  principles  of  law  relating  to  the 
freedom  of  international  commerce. 

The  regulations  for  the  hberty  of  the  navigation  of  rivers,  drawn  up  in 
conformity  with  the  treaty  of  Vienna,  provide:  "Article  2.  Navigation  over 
the  entire  course  of  the  rivers  indicated  from  the  point  where  they  become 
navigable  to  their  mouths  is  to  be  absolutely  free  and  cannot,  with  respect 
to  commerce,  be  forbidden  to  any  one,  provided  he  conforms  to  the  uniform 
regulations  established  for  the  policing  of  navigation,  and  so  far  as  possible, 
favorable  to  the  commerce  of  all  states. 

Art.  3.  The  system  which  is  to  be  established  for  the  collection  of  tolls  and 
for  the  maintenance  of  navigation  is  to  be  as  far  as  possible  the  same  through- 
out the  entire  course  of  the  river  and  is  to  extend,  unless  special  circumstances 
interfere,  to  the  arms  and  affluents  thereof  which,  throughout  the  length  of  the 
navigable  portions,  separate  or  cross  different  states. 

965.  No  riparian  state  can  subject  the  section  of  an  interna- 
tional river  that  passes  through  its  territory  to  special  regulations 
favorable  to  its  own  interests.  It  must  be  deemed  a  violation  of 
international  law  for  riparian  states  to  agree  to  enact  regulations 
applicable  to  the  whole  river,  an  act  opposed  to  the  principle  of 
the  free  navigation  of  the  river. 

966.  The  right  of  riparian  states  to  regulate  in  common  accord 
the  navigation  of  an  international  river  passing  through  or 
separating  their  territory  must  always  be  subordinated  to  the 
"common"  law  which  protects  the  freedom  of  navigation. 

967.  Riparian  states  must  not  make  any  change  nor  undertake 
any  public  work  susceptible  of  making  the  river  unfit  for  its  pur- 
pose. If  it  should  do  so,  any  riparian  state  may  require  that  the 
river  be  maintained  throughout  its  course  in  a  condition  fit  for 
the  needs  of  international  commerce  and  that  every  obstacle  to 
the  freedom  of  navigation  be  removed. 

968.  It  is  the  duty  of  every  I'iparian  state  to  undertake  the 
works  necessary  to  maintain  the  river  in  a  good  condition  of  navi- 
gability.   When  unable  to  construct  tliem,  it  caimot  oppose  their 


31H)  INTERNATIONAL   LAW    CODIFIED 

construction  by  all  the  riparian  states  or  by  one  of  them,  all  agree- 
ing to  a  pro  rate  contribution  to  the  expenses  incurred. 

PRINCIPLES   CONCERNING   THE    REGULATION   OF   RIVER   NAVIGATION 

969.  The  regulation  of  river  navigation  must  provide  for: 

(a)  Effecting  whatever  may  be  necessary  to  secure  the  easy  and 
safe  navigation  of  the  navigable  course  of  the  river; 

(6)  Determining  the  technical  works  to  be  constructed  at  joint 
expense  or  at  the  expense  of  one  or  other  of  the  riparian  states  and 
supervising  their  construction; 

(c)  Preventing  such  works  as  may  alter  the  course  or  distribu- 
tion of  the  waters  or  create  some  obstacle  to  the  freedom  or  safety 
of  navigation; 

(d)  Reconciling  the  private  interests  of  every  riparian  state  and 
of  its  citizens  with  general  interests; 

(e)  Establishing  an  authority  to  enforce  the  regulations. 

970.  It  is  the  duty  of  each  riparian  state  to  provide,  by  special 
regulation,  for  the  police  of  navigation  over  the  section  of  the 
river  flowing  through  its  territory;  to  prevent  smuggling  therein; 
and  to  regulate  health  inspection,  quarantine,  and  the  payment  of 
navigation  dues  by  the  ships  entering  its  ports,  all  without  preju- 
dice to  general  interests. 

971.  The  arms  of  an  international  river,  communicating  with 
the  sea  and  meeting  the  proper  conditions  of  navigability  must, 
throughout  their  navigable  course,  be  considered  as  constituting 
part  of  the  river  and  subject  with  respect  to  navigation  to  the 
regulations  governing  the  river. 

NAVIGATION   TAXES   AND   DUES 

972.  The  right  of  each  state  crossed  or  bounded  by  an  inter- 
national river  to  collect  any  kind  of  contribution  under  the  name 
of  navigation  tax  must  be  determined  and  limited  in  proportion 
to  its  share  of  expense  in  maintaining  the  river  in  a  condition  of 
navigability.  Such  tax  is  to  be  considered  as  compensation  for 
the  expenses  incurred  to  that  end. 

973.  Every  regulation  of  a  riparian  state  which  subjects  navi- 
gation over  a  river  to  the  payment  of  transit  dues  must  be  con- 
sidered as  a  violation  of  international  law.     Such  taxes  would 


COMMON   PROPERTY  397 

imply  the  assertion  of  a  right  of  sovereignty  over  waters  which, 
according  to  "common"  law,  every  one  has  the  right  freely  to 
enjoy  for  the  requirements  of  navigation. 

974.  The  general  taxes  of  entry  and  transit  which  each  of  the 
riparian  states  may  collect  upon  vessels  navigating  the  section  of 
the  river  within  its  jurisdiction  must  be  determined  by  means  of 
tariffs  officially  published  and  proportionate  to  those  established 
for  the  seaports  open  to  commerce,  increased  only  in  consideration 
of  the  expenses  necessary  to  maintain  the  river  in  its  own  section 
in  a  state  of  navigability. 

975.  Any  form  of  contribution,  imposed  for  any  reason  what- 
ever by  one  of  the  riparian  states  on  ships  transporting  goods  in 
transit,  which  is  not  conformable  to  the  general  tariff  and  in  pro- 
portion to  the  technical  and  administrative  expenses  incurred  in 
the  interests  of  navigation,  is  to  be  considered  as  an  arbitrary 
charge  and  as  contrary  to  the  principle  of  the  international  free- 
dom of  navigation  and  commerce. 

976.  The  collection  of  navigation  dues,  when  justified,  must 
always  be  simplified  so  as  not  to  interfere  with  the  freedom  of 
commerce. 

It  must  be  deemed  essential,  therefore,  that  the  amount  of  such 
duties  be  independent  of  the  nature  of  the  cargo,  and  proportion- 
ate to  the  capacity  of  the  ship,  and  that  all  forms  of  differential 
treatment  be  eliminated. 

The  capacity  of  a  ship  must  be  considered  as  established  by  its 
tonnage  as  indicated  in  the  ship's  papers. 

The  only  vessels  which  may  be  subjected  to  the  payment  of 
customs  duties  are  those  entering  ports  for  commercial  purposes, 
exempting  those  which,  through  the  necessities  of  navigation,  are 
forced  to  discharge  or  deposit  their  cargo,  which  must  be  subjected 
only  to  the  expenses  of  discharge  and  deposit  in  accordance  with 
local  regulations. 

COMPULSORY   PILOTAGE 

977.  No  riparian  state  can  compel  the  ships  that  pass  through 
the  section  of  the  river  under  its  jurisdiction  to  employ  an  expe- 
rienced local  pilot,  except  under  circumstances  and  in  localities  in 
which  it  might  be  dangerous  to  trust  the  management  of  a  ship 
to  a  foreign  pilot. 


398  INTERNATIONAL  LAW   CODIFIED  \ 

COASTING   TRADE 

978.  Every  riparian  state  may  reserve  the  coasting  trade  in  the 
section  of  the  river  under  its  jurisdiction  to  its  own  citizens.  The 
transportation  of  passengers  along  the  banks  of  the  different  sec- 
tions of  the  river  must  be  subject  to  the  rules  governing  the  mari- 
time coasts  of  civilized  states. 

LEGAL  ENFORCEMENT  OF  THE  REGULATIONS 

979.  Regulations  concerning  the  navigation  of  international 
rivers  are  considered  to  be  under  the  collective  guaranty  of  all  the 
states  constituting  the  international  society,  and  may  be  declared 
binding  by  them  upon  any  riparian  state  which  may  have  refused 
to  subscribe  or  adhere  to  them. 

980.  A  regulation  of  river  navigation,  drawn  up  by  common 
agreement  among  the  riparian  states  and  accepted  by  other  states 
without  opposition,  cannot  be  modified  independently  by  any  of 
the  states  parties  to  it. 

Each  state  has  the  right  to  provide  for  the  enforcement  of 
regulations  established  by  common  accord  to  protect  the  freedom 
of  navigation  and  commerce  and  to  control  any  modifications 
which  might  be  made  to  the  detriment  of  the  general  interests. 

JURISDICTION  OVER  CONTROVERSIES  REGARDING  RIVER  NAVIGATION 

981.  The  decision  of  any  controversy  of  international  import 
relating  to  the  navigation  of  international  rivers,  or  which  may 
proceed  from  a  violation  of  or  non-compliance  with,  the  rules  of 
international  law  which  concern  the  control  and  administration 
of  these  rivers,  must  be  referred  to  a  permanent  international 
commission,  or  to  a  special  tribunal  constituted  both  by  the  repre- 
sentatives of  the  riparian  states  and  by  those  of  other  states. 

982.  Controversies  which  may  arise  from  acts  of  private  persons 
occasioned  by  some  event  or  by  an  accident  of  navigation  in  one 
section  or  other  of  the  river,  or  from  non-compliance  with  the 
special  regulations  established  by  each  riparian  state  are  to  be  re- 
ferred to  the  courts  of  the  state  having  jurisdiction  of  the  section 
of  the  river  in  which  such  acts  or  violation  of  regulations  occurred. 


COMMON   PROPERTY  399 

This  inile  aims  to  fix  the  competence  of  the  international  commission  and 
that  of  the  territorial  authorities.  An  international  jurisdiction  could  not  be 
justified  with  respect  to  acts  of  all  kinds  occurring  on  an  international  river. 
Whenever  such  acts,  by  their  nature,  cannot  be  deemed  of  international  im- 
port, it  is  reasonable  that  they  should  be  submitted  to  the  territorial  adminis- 
trative or  judicial  authorities.  So  far  as  they  are  concerned,  indeed,  the  com- 
petence of  a  special  international  jurisdiction  substituted  for  the  ordinary 
territorial  jurisdiction  cannot  be  justified. 


NAVIGABLE  RIVERS  FLOWING  THROUGH  THE  TERRITORY  OF  A  SINGLE 

STATE 

983.  Navigable  rivers  which  from  their  source  to  their  mouth 
flow  through  the  territory  of  only  one  state  must  be  assimilated 
to  the  open  sea  from  the  point  where  they  become  navigable. 

The  right  to  navigate  them  freely  and  to  fish  in  them  must, 
therefore,  be  recognized  as  open  to  the  vessels  of  all  nations,  but 
it  must  be  conceded  also,  that  the  sovereign,  having  dominion 
over  the  banks  of  the  river,  may  fix  the  conditions  upon  which 
foreign  ships  may  utilize  the  banks  and  ports  for  commercial 
purposes. 

This  rule  is  based  on  the  idea  that  all  waters  which  cannot  be  considered 
within  the  dominion  of  any  particular  sovereignty  ought  to  be  in  the  class  of 
common  things  which,  according  to  the  law  of  nations,  may  be  used  and  en- 
joyed freely  by  every  one. 

The  state  to  which  the  banks  of  a  navigable  river  belong  cannot  have  legal 
possession  of  the  waters  beyond  the  maritime  frontier,  that  is,  beyond  three 
miles  from  the  shore.  Therefore,  the  state  cannot  prevent  ships  wishing  to 
enter  the  river  from  the  sea  from  navigating  freely  over  the  portion  beyond  the 
maritime  frontier,  either  to  carry  on  fishing,  or  to  occupy  an  island  formed  in 
the  bed  of  the  river,  or  for  any  other  purpose.  The  navigable  river  even  when 
it  flows  through  a  single  state  must  be  assimilated  to  the  open  sea.  Yet 
such  river  cannot  be  used  for  international  commerce,  and  therefore,  could  not 
be  subject  to  the  same  regulations  as  international  rivers  in  the  matter  of  the 
freedom  of  international  commerce.  Tiie  interference  with  commerce  on  an 
international  river  may  undoubtedly  be  considered  as  opposed  to  the  princi- 
ples of  an  enlightened  policy  and  to  the  economic  interests  of  the  state  itself; 
but  we  cannot  maintain  that  the  territorial  sovereign  has  not  the  right  to 
apply  to  the  commerce  carried  on  within  his  territorial  river  waters  the  prin- 
ciples which  he  considers  best,  without  being  subject  to  the  restrictions  which, 
in  the  common  interest  in  the  freedom  of  international  commerce,  ought  to  be 
considered  imposed  on  all  the  riparian  states  with  regard  to  international 
rivers. 

984.  The  state  to  which  both  banks  of  a  navigable  river  belong 
may  prohibit  navigation  within  its  tenitoriai  waters  to  foreign 


400  INTERNATIONAL  LAW   CODIFIED 

ships  and  the  carrying  on  of  trade  in  the  open  ports  throughout 
the  course  of  the  river  or  may  regulate  navigation  and  trading 
without  equaUty  of  treatment. 

Every  right  of  the  sovereignty  of  the  state  over  a  river  within 
its  territorial  limits  must  be  subject  to  the  same  rules  which  govern 
the  rights  of  sovereignty  over  territorial  waters. 

POSITIVE  LAW   RELATING   TO   RIVER  NAVIGATION 

985.  Save  for  the  application  of  the  principles  of  "common" 
law  in  the  absence  of  treaty  regulating  the  navigation  of  an  inter- 
national river,  everything  concerning  the  liberty  of  navigation  of 
a  river  and  the  exercise  of  the  respective  rights  of  the  states  sep- 
arated or  traversed  by  such  river  must  be  considered  as  governed 
by  treaties  or  special  regulations. 

986.  Whenever  the  treaty  or  the  regulations  are  silent,  or  it  be- 
comes necessary  to  construe  the  stipulations  of  the  convention  or 
regulations,  every  question  or  dispute  must  be  decided  in  the  sense 
most  favorable  to  the  principle  of  the  freedom  of  navigation  and 
of  international  commerce. 

987.  It  is  the  duty  of  international  commissions  created  to 
provide  for  the  execution  of  the  provisions  of  treaties,  to  draw  up 
without  delay  the  regulations  of  navigation  and  river  pohce  with  a 
view  to  assure  the  navigability  of  the  river;  to  fix  the  general  tariffs 
for  navigation  dues;  and  to  regulate  the  police,  administration  and 
supervision  and  do  everything  required  in  the  common  interest  to 
facilitate  navigation  and  to  promote  the  freedom  of  international 
commerce. 

The  treaties  concluded  to  regulate  the  navigation  of  the  different  interna- 
tional rivers  are  rather  numerous  and  to  set  out  the  rules  of  positive  law  accord- 
ing to  such  treaties  would  be  a  long  and  involved  task.  Certain  data  on  the 
most  important  rivers  will  be  found  in  v.  II  of  our  work:  Trattalo  di  diritlo 
internazionale  pubblico,  §§  805  et  seq.  One  of  the  most  important  acts,  in  which 
are  embodied  the  most  liberal  principles  relating  to  river  navigation,  is  the 
general  and  final  act  of  the  Conference  of  Berlin  of  February  2,  1885,  in  Chap- 
ters IV  and  V  of  which  are  contained  the  rules  adopted  for  the  navigation  of 
the  Congo  and  Niger  rivers.  See,  Catellani,  Le  colonie  e  la  Conferenza  di 
Berlino;  Calvo,  Broil  international,  §§  308  et  seq.;  Engelhardt,  Du  regime  con- 
ventionnel  des  flcuves  intemationaux;  Bonfils,  Manuel  de  droit  international 
public,  §§520  et  seq^and  the  authors  there  cited;  Pradier-Fod^r6,  Droit  in- 
ternal., v.  II,  §§  682,  757;  Rivier,  Principes  de  droit  des  gens,  v.  I,  pp.  220  et  seq.; 
Oppenheim,  Intemalional  law,  vol.  I,  2d  ed.,  pp.  240-244.     The  InstitiU  de 


COMMON    PROPERTY  401 

iJroif  intemaHonal  adopted  at  Madrid  certain  international  rules  regarding 
rivers.    iSee  Anuaaire,  v.  XXIV,  1911. 


ARTIFICIAL  NAVIGABLE   CANALS 

988.  Navigable  canals  artificially  constructed  to  be  used  for 
international  navigation,  even  when,  throughout  their  whole 
length,  they  cross  the  territory  of  a  single  state,  must  be  considered 
as  governed  by  the  rules  of  international  law  which  guarantee  the 
freedom  of  navigation. 

The  most  important  interoceanic  maritime  canal  opened  to  international 
commerce  is  the  Suez  Canal,  which  represents  one  of  the  most  stupendous 
works  performed  during  the  XlXth  century.  It  is  situated  entirely  in  Egypt. 
Another  is  the  Corinth  Canal,  built  on  Greek  territory  and  opened  on  Au- 
gust 24,  1893,  but  it  has  not  the  same  international  importance.  The  Panama 
Canal  unites  the  Atlantic  with  the  Pacific  Ocean.  Finally  ,  there  is  the  Kiel 
Canal,  uniting  the  bay  of  the  same  name  with  the  mouth  of  the  Elba  river. 

989.  The  rights  of  the  territorial  sovereign  of  the  territory 
traversed  by  the  canal  and  those  of  the  contractors  who  built 
it  must  be  subordinated  to  the  general  interest,  which  con- 
sists in  using  such  means  of  communication  for  international 
transportation  and  commerce.  Therefore,  aside  from  the  rights 
of  jurisdiction  of  the  territorial  sovereign  according  to  "common" 
law,  and  those  which  must  be  recognized  on  the  part  of  the  con- 
cessionaires under  the  contract  providing  for  the  undertaking, 
everything  concerning  the  free  use  of  the  canal  on  the  basis  of 
perfect  equality  must  be  determined  by  common  accord  and  re- 
main under  the  protection  and  control  of  the  states  whose  duty  it 
is  to  safeguard  the  use  of  the  canal  for  the  needs  of  navigation. 

990.  The  establishment  of  rules  guaranteeing  the  free  use  of  a 
navigable  canal  and  reconciling  general  interests  which  arise  from 
its  use  by  all  states  for  the  needs  of  international  commerce,  with 
the  rights  of  the  territorial  sovereignty,  ought  to  be  reserved  for 
an  international  conference  or  commission. 

The  regulations  for  the  navigation  of  the  Suez  Canal  were  drawn  up  in 
common  accord  at  the  suggestion  of  Great  Britain,  which  proposed  the  meet- 
ing of  a  conference  of  the  interested  powers  in  order  to  establish  conventional 
regulations  to  guarantee  the  freedom  of  navigation  in  time  of  peace  and  in 
time  of  war.  This  invitation  was  notified  through  diplomatic  channels  by  the 
cirr-ular  note  of  Ix)rd  Granville,  of  .January  3,  1883.  On  March  17,  1885,  there 
was  signed  at  Ijondon  the  foll(Jwuig  declaration,  by  which  there  was  instituted. 


402  INTERNATIONAL  LAW   CODIFIED 

a  commission  to  prepare  a  draft  of  the  regulations:  "Whereas  the  powers  are 
agreed  in  recognizing  the  pressing  need  of  a  negotiation  with  a  view  to  sanc- 
tioning through  a  convention  the  establishment  of  a  definite  regime  with  the 
object  of  guaranteeing  at  all  times  and  to  all  the  powers  the  free  use  of  the 
Suez  Canal,  it  is  agreed  between  the  seven  aforesaid  governments  that  a  com- 
mission composed  of  delegates  appointed  by  the  said  governments  shall  meet 
at  Paris  on  March  30  to  prepare  and  draw  up  such  convention,  taking  as  a 
basis  the  circular  of  His  Britannic  Majesty's  government  of  January  3,  1883." 
Compare:  Fiore,  Diritto  intemazionale  pubblico,  4th  ed.,  v.  II,  Appendix,  pp. 
616  et  seq. 

991.  States  must  see  to  it  that  artificial  maritime  canals  are 
always  free  and  open  to  commerce  in  times  of  peace  and  of  war, 
maintaining  the  principle  of  perfect  equality  with  respect  to  the 
ships  of  all  nations  and  avoiding  any  privilege  and  advantage  that 
might  be  established  by  private  agreement.  They  must,  more- 
over, arrange  to  eliminate  any  obstacle  by  the  territorial  sovereign 
to  the  entire  freedom  of  navigation,  while  reserving  the  rights  of 
such  sovereign,  subordinating  them,  however,  to  the  safeguard  of 
the  general  interests. 

The  conventional  regime  of  the  Suez  maritime  canal,  established  by  the 
Conference  of  Paris  of  1885,  and  confirmed  in  the  treaty  signed  at  Constanti- 
nople, October  29,  1888,  complies  fully  with  the  principles  of  science  and  the 
exigencies  of  the  freedom  of  international  commerce.  Under  that  treaty, 
not  only  was  the  free  use  of  the  Suez  Canal  guaranteed  in  times  of  peace  and  of 
war,  but  there  was  secured  as  well  the  principle  of  equahty  as  regards  the  free 
use  of  the  canal.  In  effect,  the  signatory  powers  formally  engaged  not  to 
attempt  to  obtain  any  territorial  or  commercial  advantage  or  privileges  through 
international  agreements  which  might  subsequently  be  concluded  with  respect 
to  the  canal  (art.  12):  "The  high  contracting  parties  agree,  by  application  of 
the  principle  of  equality  as  regards  the  free  use  of  the  Suez  Canal  (a  principle 
which  is  one  of  the  bases  of  the  present  treaty)  that  none  of  them  shall  seek 
territorial  or  commercial  advantages,  or  any  privileges  in  the  international 
arrangements  which  may  take  place  with  respect  to  the  Canal.  The  rights 
of  Turkey,  furthermore,  as  a  territorial  power  are  reserved."        ^ 

992.  Dues  and  tolls  of  transit,  pilotage,  towing,  etc.,  paid  by 
the  ships  that  use  an  artificial  canal,  must  be  established  with 
moderation  and  be  regarded  as  intended  to  make  good  the  money 
expended  in  building  the  canal  and  to  cover  the  expenses  neces- 
sary to  maintain  the  canal  in  a  condition  of  navigabiUty. 


LIBERTY   OF   STRAITS 

993.  Straits  that  unite  open  seas,  or  a  sea  open  or  closed,  with  an 
international  river,  must,  so  far  as  concerns  their  use,  be  deemed 


COMMON   PROPERTY  403 

common  property,  everj'^body  having  the  right  to  use  them  freely 
for  the  needs  of  navigation  and  of  commerce. 

994.  No  territorial  sovereign  may,  without  violating  interna- 
tional law,  refuse  to  recognize  the  freedom  of  transit  through 
straits  or  consider  straits  as  within  his  exclusive  domain  even 
when  both  shores  belong  to  him  and  he  can  in  fact  prohibit  their 
use  by  force. 

995.  It  must  be  regarded  as  contrary  to  international  law  to 
compel  ships  which  cross  a  strait  to  pay  to  the  sovereign  to  whom 
the  shores  belong  any  tax  or  toll  which  might  have  the  character 
of  a  tax  for  passage,  save  when  such  tax  may  be  considered  as 
representing  the  services  rendered  and  expenses  incurred  in  render- 
ing the  strait  fit  for  navigation. 

996.  Any  toll  which  might  be  justified  ought  to  be  confined 
within  the  strict  limits  of  reimbursement  for  actual  services  and 
actual  expenditures  incurred  in  rendering  the  strait  navigable,  so 
as  to  remove  from  the  toll  am'  character  of  a  tax  for  passage. 

997.  A  state  which  would  collect  a  dutj'  disproportionate  to  the 
services  rendered  by  it  could  be  compelled  to  put  an  end  to  such 
an  abuse  and  to  Hmit  its  claims  according  to  equity  or  as  might  be 
determined  by  arbitration. 

998.  The  state  to  which  the  shores  belong  always  has  the  right 
to  regulate  the  navigation  of  the  strait,  so  as  to  assure  its  own 
safety  and  defense  in  time  of  war.  Such  right  must  be  recog- 
nized particularly  with  respect  to  straits  which  connect  an  open 
sea  with  a  closed  sea. 

999.  The  right  of  passage  of  war  vessels  through  the  straits  of 
the  Bosphorus  and  the  Dardanelles  must  remain  subject  to  the 
conventions  concluded  between  the  Ottoman  Empire  and  the 
other  powers  relating  to  navigation  in  these  straits. 

The  navigation  of  the  Bosphorus  and  of  the  Dardanelles  was  regulated  by 
the  convention  of  July  13,  18-11,  which  was  revived  by  article  10  of  the  treaty 
of  Paris  of  March  30,  1856,  and  was  regulated  by  the  convention  of  the  same 
day  annexed  to  that  treaty.  This  latter  convention  was  maintained  by  the 
treaty  of  London  of  March  13,  1871,  which  provides  in  article  2:  "The  principle 
of  the  closing  of  the  Straits  of  the  Dardanelles  and  the  Bosphorus,  as  laid  down 
by  the  separate  convention  of  March  30,  185G,  is  maintained,  with  the  faculty 
on  the  part  of  HLs  Imperial  Majesty  the  Sultan  to  open  the  said  Straits  in 
time  of  peace  to  the  ships  of  war  of  friendly  and  allied  powers  in  case  the  Sub- 
lime Porte  should  deem  it  necessary  in  order  to  safeguard  the  execution  of  the 
stipulations  of  the  treaty  of  Paris  of  March  30,  1856." 


404  INTERNATIONAL   LAW   CODIFIED 

LIBERTY  OF  FISHING  ON  THE   HIGH   SEAS  AND  IN  NON-TERRITORIAL 

WATERS 

1000.  Liberty  of  fishing  on  the  high  seas  and  in  non-territorial 
waters  must  be  deemed  the  natural  right  of  man. 

It  is  the  duty  of  the  sovereign  of  every  state  to  regulate  this 
branch  of  industry  with  respect  to  his  citizens  who  wish  to  carry 
it  on  and  to  protect  their  right  in  competition  with  foreign  fisher- 
men, assuring  the  respect  of  and  compliance  with  the  rules  founded 
on  "common"  law  and  those  which,  according  to  usage  and  cus- 
tom, must  govern  fishing  in  open  waters. 

1001.  No  state  may  claim  the  exclusive  right  to  fish  beyond  its 
territorial  sea,  nor  can  it  base  its  pretended  right  to  extend  the 
limits  of  such  sea,  for  the  advantage  of  its  citizens,  upon  treaties 
or  immemorial  possession  contrary  to  the  principles  of  "common" 
law,  which  recognize  the  liberty  of  fishing  on  the  high  seas. 

1002.  Conventions  concluded  between  two  or  more  states  to 
regulate  fishing  beyond  their  respective  territorial  waters  cannot 
be  considered  as  binding  except  with  respect  to  the  citizens  of  the 
contracting  states. 

It  is  unquestionable  that  two  or  more  states  may  by  common  agreement 
regulate  fishing  by  their  respective  citizens  in  the  marginal  waters  of  their 
territorial  sea  and  may  establish  conventional  rules  in  their  common  interest. 
Nevertheless,  this  cannot  render  obligatory  upon  other  states  regulations 
thus  estabUshed.  In  effect,  so  far  as  third  powers  are  concerned,  the  conven- 
tion should  be  held  res  inter  alios  acta.  It  could  not,  therefore,  have  any  legal 
value  to  modify  the  principles  of  common  international  law  which  assure  the 
liberty  of  fishing  on  the  high  seas.  The  claims  of  certain  states,  based  on  im- 
memorial usage  (such  as  those,  for  instance,  of  Denmark,  which  claimed  the 
monopoly  of  open  sea  fishing  over  the  whole  of  the  sea  of  Greenland),  must  be 
regarded  as  contrary  to  the  principles  of  international  law. 

1003.  States  which,  in  order  either  to  regulate  open  sea  fishing 
in  theii-  common  interest  or  to  prevent  conflicts  between  their 
respective  citizens  engaged  in  that  industry,  adopt  to  that  end 
regulations  applicable  beyond  their  territorial  waters  and  provide 
punishment  for  violations  thereof,  committing  to  their  war  vessels 
the  enforcement  of  rules  thus  established,  cannot  consider  such 
regulations  applicable  to  the  ships  that  do  not  belong  to  the  mer- 
chant marine  of  the  contracting  states. 

An  example  of  such  a  convention  is  that  concluded  May  6,  1882,  between 
Belgium,  Denmark,  France,  Germany,  Great  Britain  and  Holland,  to  regulate 


COMMON    PROPERTY  405 

fishing  in  the  North  Sea  beyond  territorial  waters.  It  goes  without  saying 
that  such  treaty  cannot  give  any  jurisdiction  over  the  ships  of  states  other 
than  those  which  signed  it. 

1004.  Treaties  concluded  to  regulate  fishing  in  the  open  sea,  in 
so  far  as  they  derogate  from  the  principles  of  "common"  law  re- 
lating to  the  freedom  of  the  sea,  must,  as  regards  their  vahdity  be- 
tween the  contracting  parties,  be  strictly  construed,  as  must  every 
conventional  clause  which  implies  a  limitation  upon  the  free  exer- 
cise of  a  right. 

Compare,  as  regards  the  questions  that  arose  with  respect  to  fishing  in  the 
Behring  Sea,  the  award  handed  down  August  15,  1893,  by  the  tribunal  of 
arbitration;  Calvo,  Droit  inlernalional,  v.  6,  Supplement  general,  §§379  el  seq.; 
Fiore,  Diritto  internazionale  pubblico,  4th  ed.,  v.  II,  Appendix,  p.  607;  Oppen- 
heim,  International  law,  v.  I,  2d  ed.,  p.  351. 

LAKES 

1005.  Lakes  situated  between  several  states  and  accessible  from 
the  river  by  which  they  are  formed  or  from  the  sea,  and  navigable 
like  international  rivers,  must  be  considered  as  common  property 
and  come  within  the  application  of  the  principles  relating  to  the 
navigation  of  international  waters. 

When  situated  between  the  territories  of  several  states,  but  not 
accessible  from  the  sea,  they  come  under  the  rules  relating  to  the 
liberty  of  navigation  and  fishing  of  the  states  to  which  belong  the 
surrounding  landed  territories. 

In  the  treaty  of  Berlin  of  February  26,  1885.  the  rules  relating  to  the  liberty 
of  commerce  in  the  Congo  basin  were  declared  applicable  (article  2)  to  the 
navigation  of  all  the  rivers  that  disembogue  into  the  sea  and  to  all  the  waters 
of  the  Congo  and  its  tributaries,  including  lakes.  In  article  15,  the  r6gime 
established  for  the  navigation  of  rivers  is  declared  equally  applicable  to  the 
tributaries  of  the  Congo  River  and  to  lakes.  One  of  the  great  lakes  of  North 
America,  Lake  Ontario,  which  belongs  partly  to  the  state  of  New  York  and 
partly  to  Canada,  is  subject  to  si)ecial  regulations  of  navigation  under  the 
treaty  of  Washington  of  June  5,  1854,  article  5. 

.'\s  to  lakes  surrounded  by  the  territories  of  several  states,  we  are  of  the 
<)I)inion  that  they  must  be  deemed  common  property  so  far  as  such  states  are 
concerned  and  must  be  governed  by  the  rules  applicable  to  common  property. 
(See  rules  1098  et  aeq.) 

FREEDOM    OF   NAVIGATION 

1006.  Any  ship  may  navigate  freely  in  the  ocean  and  the  waters 
which  are  not  within  the  jurisdiction  of  any  state,  on  condition, 


406  INTERNATIONAL   LAW   CODIFIED 

however,  of  complying  with  the  rules  of  "common"  law  relating 
to  navigation  on  the  high  seas. 

All  waters  that  cannot  be  regarded  as  within  the  territorial  dominion  of  a 
state  must,  according  to  natural  law,  be  deemed  as  intended  to  serve  the  needs 
of  those  who  wish  to  use  them,  the  same  as  light,  air  and  natural  heat.  There- 
fore, the  principles  which  relate  to  the  freedom  of  navigation  must  be  apphca- 
ble  to  all  free  waters,  whether  those  of  the  sea,  of  a  lake  or  of  a  river. 

1007.  Any  limitation  upon  or  obstacle  to  the  freedom  of  naviga- 
tion in  free  waters  imposed  bj^  a  state,  as  well  as  any  act  of  sover- 
eignty or  jurisdiction  on  the  part  of  the  said  state  that  may  not  be 
justified  under  the  principles  of  "common"  law,  must  be  regarded 
as  violations  of  the  freedom  of  the  sea  and  involve  the  international 
responsibility  of  the  state. 

1008.  It  must  be  considered  as  contrary  to  the  freedom  of  the 
sea  and  of  navigation  to  require  from  ships  encountered  on  the 
high  seas,  whether  they  belong  to  the  merchant  marine  or  are 
minor  war  vessels,  an  ol)ligatory  salute  or  any  other  act  which 
might  indicate  their  dependence  upon  or  subjection  to  war  vessels 
of  another  state. 

CONTROL   ON   THE    HIGH   SEAS   DURING   THE   VOYAGE 

1009.  Supervision  and  control  of  navigation  during  the  voyage 
on  the  high  seas  must  be  regarded  as  assigned  to  the  war  vessels 
of  every  state,  confined  exclusively,  however,  to  the  ships  of  its 
national  merchant  marine.  Any  derogation  from  this  principle 
of  "common"  law  can  only  be  established  through  a  special  con- 
vention, applicable  by  reciprocity  among  the  assenting  states. 

1010.  The  internal  control  of  the  ship  during  the  voyage  must 
be  considered  as  committed  to  the  person  in  command.  He  has  the 
right  to  preserve  order  and  disciphne  on  board  and  to  assure  the 
safety  of  passengers. 

1011.  Any  person  going  on  board,  whether  a  citizen  or  a  for- 
eigner, is  bound  to  comply  with  the  laws  and  regulations  provided 
by  the  sovereign  of  the  state  of  the  flag  of  the  ship  and  to  recognize 
during  the  passage  the  authority  of  the  persons  who,  under  the  law, 
are  empowered  to  maintain  order  and  control  on  board,  save  his 
right,  on  landing,  to  protest  against  any  abuse  of  power  on  the 
part  of  such  persons. 

1012.  It  is  the  duty  of  the  sovereign  of  every  state  to  determine 


COMMON    PROPERTY  407 

by  special  laws  the  powers  of  every  commander  of  a  national 
vessel,  during  the  voyage,  with  respect  to  the  crew  and  the  passen- 
gers. 

1013.  In  no  case  can  the  commander  of  the  vessel  prevent  any- 
one from  freely  protesting  against  acts  occurring  during  the  voyage. 

The  commander  is  not  bound  to  delay  the  voyage,  but  he  cannot 
prevent  or  hinder  the  landing  at  a  port  of  call  of  the  person  who 
desires  to  land  for  the  purpose  of  making  protest  before  the  mari- 
time or  consular  authorities.  Any  act  of  violence  on  his  part  in 
that  respect  must  be  considered  as  arbitrary  and  as  a  violation  of 
the  rules  of  "common"  international  law. 

NATIONALITY    OF   THE   SHIP 

1014.  Every  ship  must  have  its  own  character  and  be  in  a  posi- 
tion to  establish  the  state  to  which  it  must  be  considered  as  be- 
longing and  whose  flag  it  has  the  right  to  fly. 

The  national  character  of  merchant  ships  must  be  determined 
by  means  of  a  certificate  of  nationality  or  passport  which  every 
vessel  must  have  among  its  ship's  papers. 

With  regard  to  war  vessels,  their  nationality  must  appear  from 
the  military  flag,  which  they  have  the  right  to  fly  and  which  is 
considered  as  covering  them. 

1015.  The  requisites  and  form  of  the  documentary  evidence  of 
nationality  are  to  be  determined  according  to  the  law  of  each 
country.  We  must  consider,  therefore,  as  possessing  the  national- 
ity of  a  state  any  ship  which  is  legally  in  possession  of  the  docu- 
ment of  nationality  required  under  the  laws  and  regulations  of  the 
state  to  which  she  claims  to  belong. 

ship's  papers 

1016.  The  papers  that  ships  as  a  rule  must  have  are: 

(a)  The  certificate  establishing  their  identity,  indicating  their 
name,  class  and  tonnage; 

(6)  The  certificate  authorizing  them  to  navigate  under  the  na- 
tional flag,  which  is  called  the  certificate  of  nationality  or  passport; 

(c)  The  bill  of  sale  or  certificate  of  ownership  of  the  vessel; 

(d)  The  crew  list; 


408  INTERNATIONAL   LAW    CODIFIED 

(e)  The  ship's  inventory; 
(/)  The  log  book; 

(g)  The  charter-party  and  bills  of  lading; 

These  documents  may  be  drawn  up  in  various  forms  and  may  be 
included  in  one  document. 

With  regard  to  the  papers  that  Italian  merchant  ships  must  possess,  see 
Codice  di  marina  mercantile,  arts.  37  el  seq.,  and  Codice  di  commercio,  arts.  500 
and  503. 

INTERNATIONAL   RULES   OF   NAVIGATION 

1017.  The  international  rules  of  navigation  are  those  agreed 
upon  in  a  treaty  and  those  which,  in  the  absence  of  treaty,  are  the 
result  of  usage,  the  practice  of  mariners  and  the  exigencies  of  navi- 
gation. 

1018.  The  rules  of  navigation  must  aim  at  preventing  collisions 
at  sea  and  when  the  ships  enter  and  leave  ports.  They  must 
regulate  the  maritime  route,  the  signals  intended  to  prevent  disas- 
ters, speed,  the  management  and  steering  of  ships  and  everything 
necessary  to  insure  safe  navigation. 

The  regulations  which  seek  to  avoid  collisions,  while  not  signed  at  the  same 
time  by  all  the  states  that  have  successively  accepted  them,  have,  however, 
the  character  of  an  international  act,  because  in  fact  at  the  present  time  they 
represent  the  "common "  law  of  a  great  many  states.  In  effect,  they  have  been 
accepted  by  Belgium,  Chile,  Denmark,  France,  Great  Britain,  Greece,  Italy, 
Norway,  the  Netherlands,  Portugal,  Russia,  Spain,  Sweden  (the  United  States 
made  the  reservation  that  within  American  territorial  waters  certain  special 
rules  of  American  law  are  to  be  observed)  and  Turkey  (under  reservation 
that,  on  Ottoman  ships,  a  drum  should  be  substituted  for  the  bell  for  fog 
signals).  Other  states  have  adopted  these  regulations,  which  in  Italy  be- 
came operative  September  1,  1880,  under  royal  decree  of  April  4,  1880  (no. 
5390,  series  2  of  the  session  laws),  with  the  exception  of  article  10,  repealed  by 
the  new  decree  of  July  2,  1882  (id.,  no.  882,  series  3),  which  was  replaced  by 
art.  9  of  the  regulation  approved  by  royal  decree  of  February  1,  1883  {id.,  no. 
1143),  which  refers  to  fishing  vessels. 

1019.  Every  ship  of  one  of  the  nations  which  have  declared  the 
rules  of  navigation  obligatory  upon  their  respective  ships  is  bound 
scrupulously  to  comply  with  such  regulations,  and  in  case  of  non- 
compliance must  be  presumed  guilty  of  and  responsible  for  all  the 
injurious  consequences  thereof. 

1020.  Nevertheless,  when,  owing  to  special  circumstances,  it 
may  be  considered  necessary  to  depart  from  the  rules  prescribed 
in  the  navigation  regulations  to  prevent  or  to  avoid  an  impending 


I 


COMMON    PROPERTY  409 

danger  or  to  take  precautions  immediately  necessary  for  her  own 
safetj'',  the  ship  which  has  not  observed  the  rules  may  offset  the 
presumption  of  culpability^  by  proving  that  it  has  followed  the 
practice  of  mariners  in  the  special  circumstances  of  the  case. 

This  rule  aims  to  prevent  disasters  and,  especially,  collisions  which  might 
under  certain  exceptional  circumstances  follow  the  formal  and  literal  execution 
of  the  rules  adopted  to  prevent  collisions.  Let  us  suppose,  for  instance,  that 
it  is  proved  that  a  ship,  able  easily  to  carry  out  a  maneuver  that 
she  was  not  obliged  under  the  rules  to  execute,  but  which,  according  to  the 
practice  of  the  sea  was  necessary,  in  the  circumstances  in  which  she  was  placed, 
to  avoid  a  collision,  has  performed  such  maneuver,  owing  to  the  great  diffi- 
culty for  the  other  ship  to  go  through  the  maneuver  required  under  the  rules; 
in  such  circumstances,  even  if  the  collision  could  not  have  been  avoided,  it 
would  not  be  just  to  invoke  the  presumption  of  culpability  against  the  ship 
which  had  not  observed  the  rule,  when  an  established  custom  of  the  sea  re- 
quired her  so  to  act. 

RULES   CONCERNING    SIGNALS 

1021.  Ships  of  the  states  that  have  accepted  the  international 
signal  code,  are  bound  to  comply  with  the  provisions  of  the  code. 

The  international  signal  code  for  ships  was  drawn  up  in  1856  by  the  Anglo- 
French  Commission,  taking  into  account  the  signals  adopted  by  different 
states,  which  were  then  classified  after  a  thorough  examination  and  brought 
into  one  code.  Several  states  have  successively  adopted  it:  Great  Britain 
(April,  1857),  France  (June  2,  1866),  Russia  (June  28,  1867),  Netherlands 
(January,  1867),  Austria  (April  4,  1867)  Sweden  and  Norway  (May  18,  1867), 
Prussia  (May  ,3,  1867),  Brazil  (February  21,  1868)  Portugal  (December  29, 
1868),  Italy  "(April  4,  1869),  Belgium  (December  18,  1869),  Denmark  (March, 
1870),  Spain  (June  1,  1871),  Turkey  (March  31,  1880),  Greece  (April  26,  1882). 
The  United  States  accepted  the  provisions  of  the  Code  in  principle  (1873), 
but  did  not  formally  adhere  thereto. 

REVISION   OF   THE   NAVIGATION   REGULATIONS 

1022.  It  is  incumbent  upon  the  states  which  have  accepted  the 
regulations  designed  to  avoid  collisions  to  determine,  establish  and 
enforce  the  rules  relating  to  the  construction  and  equipment  of 
ships  wliich,  according  to  the  principles  of  modern  science,  may  be 
considered  as  useful  in  avoiding  (;()llisions,  rendering  their  conse- 
quences less  disastrous  and  facilitating  the  mangement  of  ships 
so  as  to  prevent  maritime  disasters. 

It  might  be  advantageous  for  that  purpose  to  create  an  inter- 
national t(!(;hnical  commission  to  revise,  perfect  and  complete  the 
regulations  in  force. 


410  INTERNATIONAL   LAW    CODIFIED 

RATIONAL   RULES   OF   MARITIME    COURSES   OR   ROUTES 

1023.  Every  ship,  independently  of  the  international  regulations 
compulsory  upon  the  ships  of  the  states  which  have  accepted  them, 
is  bound  to  comply  during  the  voyage  with  the  rules  deemed 
binding  according  to  the  practice  of  mariners  and  the  requirements 
of  navigation. 

RULES    CONCERNING    SIGNAL   LIGHTS 

1024.  Every  steamship  must  have  a  signal-light  placed  at  a 
certain  height  and  sufficiently  luminous  to  be  visible  on  a  dark 
night  and  clear  atmosphere  at  a  distance  of  at  least  five  miles,  and 
projecting  light  uniformly  and  without  interruption.  It  must  also 
have  on  each  side  a  light  visible  on  a  dark  night  and  clear  atmos- 
phere, at  a  distance  of  at  least  two  miles. 

These  lights  must  remain  burning  from  sunset  to  sunrise,  re- 
gardless of  atmospheric  conditions. 

1025.  Every  sailing  vessel  must  carry  on  the  foremast  and  on 
both  sides,  three  lights  casting  a  light  visible  on  a  dark  night  and 
clear  atmosphere  at  the  same  distance  as  in  the  case  of  steamships. 

1026.  Steam  and  saiUng  vessels,  when  at  anchor,  must  have  a 
light  so  placed  as  to  cast  a  light  visible  from  all  points  of  the  hori- 
zon and  at  a  distance  of  at  least  one  mile. 

1027.  Fishing  boats  and  all  small  craft  must  carry  a  visible  light 
on  both  sides,  casting  a  light  discernible  at  a  sufficient  distance  to 
avoid  collisions  on  the  part  of  steam  or  sailing  ships  approaching 
them. 

FOG    SIGNALS 

1028.  Every  steam  or  sailing  vessel,  although  not  belonging  to 
one  of  the  states  which  have  accepted  the  signal  code,  must  be 
provided  with  an  instrument  capable  of  producing  a  sound  that 
can  be  heard  at  a  reasonable  distance,  so  as  to  avoid  collisions  in 
fog  or  thick  weather,  or  in  case  of  snow,  and  must  signal  both  in 
daytime  and  at  night  at  intervals  not  exceeding  two  minutes. 

These  signals,  according  to  maritime  practice,  are  the  fog  horn, 
the  bells,  the  drum  and  other  similar  instruments  capable  of  pro- 
ducing a  sharp  and  prolonged  sound,  and  whose  transmission  can- 


COMMON    PROPERTY  411 

not  be  prevented  by  atmospheric  conditions  or  by  reason  of  the 
fact  that  the  body  producing  the  sound  is  situated  on  the  ship. 

GENERAL   RULES    FOR   DIRECTING   AND    MANAGING   A   SHIP 

1029.  All  ships  following  opposite  or  almost  opposite  courses 
proceeding  toward  each  other  and  running  the  danger  of  collision 
are  bound,  independently  of  the  obligation  of  complying  with  the 
regulations,  to  maneuver  according  to  the  rules  accepted  in  prac- 
tice by  mariners,  so  as  to  leave  the  way  free  to  the  other  ship  and 
thus  avoid  the  risk  of  a  collision. 

The  rules  are  as  follows: 

(a)  A  vessel  which  sails  in  the  open  sea  must  leave  the  course 
free  to  a  vessel  which  runs  close  upon  the  wind; 

(b)  A  vessel  which  is  close  upon  the  larboard  tack  must  leave  the 
course  free  to  the  vessel  which  is  close  upon  the  starboard  tack; 

(c)  When  two  vessels  sail  in  the  open  sea,  but  with  different 
tacks,  the  one  which  has  larboard  wind  must  leave  the  course  free 
to  the  other; 

(d)  When  two  vessels  sail  in  the  open  sea,  both  having  the  wind 
on  the  same  side,  the  one  which  runs  windward  must  leave  the 
course  free  to  the  one  which  runs  leeward; 

(e)  Vessels  running  with  wind  aft  must  leave  the  course  free  to 
any  other; 

(/)  If  two  steam  boats  follow  routes  which  so  cross  each  other  as 
to  involve  a  risk  of  collision  the  vessel  that  has  the  other  on  the 
starboard  must  give  the  latter  a  free  course; 

(g)  If  two  vessels,  one  a  sailing  vessel  and  the  other  a  steam- 
ship, navigate  in  such  directions  as  to  run  the  risk  of  colliding,  the 
steamship  must  clear  the  way  for  the  sailing  vessel. 

(h)  Any  steamship  approaching  another  so  as  to  cause  the  fear 
of  collision  must  slacken  her  speed  or  stop,  or  even  reverse  the 
engines,  if  necessary; 

(i)  Any  ship  overtaking  another  must  keep  outside  the  latter's 
track. 

RULES   OF   NAVIGATION    IN   TERRITORIAL    WATERS 

1030.  Every  state  may  require  foreign  ships  which  enter  its 
territorial  waters  to  observe  not  onlj''  the  general  rules  of  naviga- 


412  INTERNATIONAL    LAW    CODIFIED 

tion,  but  also  the  special  rules  that  it  prescribes  for  the  carrying 
on  of  commerce  within  its  waters,  and  ships  which  have  not  com- 
plied with  such  rules  cannot  avoid  the  presumption  of  fault  for 
disasters  resulting  from  their  non-observance. 

The  United  States,  when  adhering  to  the  common  regulations  relating  to 
navigation,  made  the  reservation  that,  in  the  matter  of  navigation  within  the 
territorial  waters  of  the  United  States,  the  laws  and  regulations  provided 
for  by  the  Union  to  avoid  collisions  within  its  territorial  sea,  as  specified  in 
section  4233  of  the  Revised  Statutes  of  the  United  States,  must  be  observed. 

RESPONSIBILITY    FOR    COLLISION 

1031.  Any  vessel  which  has  not  observed  the  rules  of  navigation 
according  to  the  international  regulations  or  those  which  must  be 
considered  compulsory  according  to  the  common  practice  of 
mariners  to  avoid  collisions,  will  be  presumed  at  fault  and  be  held 
responsible  for  the  damage  resulting  from  the  collision. 

Such  vessel  will  also  be  answerable  for  her  fault  and  even  neg- 
ligence, when  she  has  omitted  the  precautions  required  by  the 
common  practice  of  mariners  and  by  the  special  circumstances  of 
the  case. 

DISTRIBUTION   OF   DAMAGES   IN   CASE    OF   COLLISION 

1032.  States  must  establish  by  common  agreement  the  regula- 
tions relating  to  damage  and  loss  in  case  of  collision  and  determine 
how  and  in  what  proportions  the  damages  must  be  borne,  dis- 
tributed or  made  good. 

Until  such  regulations  have  been  drawn  up,  the  following  rules 
may  be  considered  as  conformable  to  just  principles: 

(a)  If  the  collision  is  the  result  of  force  majeure,  the  damage 
and  loss  arising  therefrom  must  be  borne  by  the  ship  that  has  sus- 
tained them,  without  right  or  claim  to  contribution; 

(6)  If  the  colhsion  is  due  to  the  fault  of  one  of  the  ships,  the 
damage  and  loss  must  be  borne  by  the  ship  in  fault,  determined  in 
conformity  with  its  national  law; 

(c)  A  colhsion  occurring  in  territorial  waters,  rivers  and  ports, 
between  ships  of  different  nationalities,  must  be  regulated  accord- 
ing to  the  law  of  the  place  of  collision. 

{d)  When  the  collision  has  taken  place  in  territorial  waters 


COMMON    PROPERTY  413 

between  two  ships  of  the  same  nationality,  the  territorial  law  will 
be  applied  to  determine  the  fault  and  responsibility,  and  the 
national  law  of  the  ships,  to  fix  the  apportionment  of  the  damages; 

(e)  If  the  collision  has  occurred  on  the  high  seas  between 
ships  of  different  nationalities,  and  if  it  is  not  ascertained  to  which 
of  the  two  vessels  the  fault  is  chargeable,  or  if  the  fault  is  common 
to  both,  the  damages  to  the  ships  and  their  cargoes  must  be  added 
together  and  borne  by  each  in  proj^ortion  to  the  respective  value 
of  the  ship  and  the  cargo; 

(/)  In  case  of  a  collision  where  the  fault  is  in  doubt  or  of  a  col- 
lision chargeable  to  both,  occurring  on  the  high  seas  between  ships 
of  the  same  nationality,  the  national  law  of  the  ships  must  be 
applied,  even  when  a  foreign  court  passes  upon  the  case. 

At  the  Congress  of  Antwerp,  the  following  rule  was  proposed:  "If  the  vessels 
are  of  different  nationality,  in  case  of  a  collision  on  the  high  seas  chargeable 
to  the  fault  of  both  or  when  it  is  not  certain  to  which  of  the  ships  the  fault 
is  chargeable,  each  ship  is  l)ound  within  the  limits  of  the  law  of  her  own  flag 
and  cannot  receive  more  than  that  law  allows  her." 

See,  for  observations  concerning  this  rule  and  for  reasons  which  might  be 
invoked  in  support  of  the  one  we  propose:  Fiore,  De  Vahordage  des  navires 
suiva7it  le  droit  international  in  Revue  du  droit  public,  v.  3,  1895,  p.  293. 


RULES  CONCERNING  THE  COMPETENT  COURT 

1033.  States  must  draw  up  in  common  agreement  uniform 
rules  relating  to  the  jurisdiction  of  litigation  relating  to  collisions. 

In  the  absence  of  such  an  agreement,  the  following  rules  may  be 
considered  as  conforming  with  correct  principles: 

(a)  The  courts  of  each  state  are  competent  to  pass  upon  cases 
relating  to  collisions  occurring  in  territorial  waters  or  on  the  high 
seas  between  national  vessels; 

(6)  They  are  also  competent  to  pass  upon  collisions  on  the  high 
seas  between  ships  of  different  nationalities,  when  the  damaged 
ship  has  been  compelled  to  seek  refuge  in  one  of  the  ports  of  the 
state; 

(c)  When  the  damaged  ship  has  not  been  forced  by  circum- 
stances to  take  refuge  in  the  nearest  port,  the  action  must  be 
brought  before  the  court  of  the  place  of  destination,  if  the  ship  at 
fault  or  her  owner  or  his  representative  is  there;  otherwise,  the 
ordinary  rules  of  jurisdiction  must  be  observed; 


414  INTERNATIONAL   LAW   CODIFIED 

(d)  The  court  of  the  place  where  the  ship  at  fault  is  seized  is 
considered  competent; 

(e)  The  authorities  of  the  port  of  refuge  and  of  the  place  of 
destination  of  the  damaged  ship  will  always  be  competent  to  re- 
ceive the  report  of  the  ship's  master  and  to  draw  up  the  protest 
necessary  for  the  bringing  of  the  action,  to  take  depositions  of 
witnesses,  to  order  a  technical  survey,  to  ascertain  the  damages 
and  to  perform  all  the  acts  of  investigation  necessary  to  determine 
the  responsibiUties. 


TITLE  II 

PUBLIC  PROPERTY  IN  ITS  RELATIONS  WITH 
INTERNATIONAL  LAW 

GENERAL   PRINCIPLES 

1034.  Public  property  is  corporeal  or  incorporeal.  The  for- 
mer consists  of  material  things  of  which  each  state  has  the  ex- 
clusive legal  possession  as  against  other  states.  The  latter  con- 
sists of  property  which  each  state  enjoys  exclusively,  that  is,  things 
that  the  sovereign  has  within  his  control  and  may  dispose  of  for 
the  needs  of  the  commonwealth. 

Modern  systems  of  legislation  have  admitted  the  distinction  drawn  by  Jus- 
tinian between  the  res  puhlicae  and  the  res  universitatis  (Inst.,  lib.  2,  tit.  I). 
They  admit,  therefore,  that  the  state  may  enjoy  tiH  singulns  certain  property 
which  it  owns,  while  it  may  enjoy  other  things  only  uti  cives.  This  distinction 
is  a  matter  of  public  internal  law,  according  to  which  the  property  of  the  state 
is  divided  into  property  merely  under  its  eminent  dominion  and  property  of 
which  it  has  title  and  of  which  it  may  or  may  not  dispose.  In  international 
law,  there  is  no  such  distinction.  The  question  is  to  determine  the  right  of 
each  state  over  the  whole  public  property  concurrently  with  the  other  states 
which  exist  with  it  in  the  Magna  dvitas.  Consequently,  the  distinction  which 
we  have  made  seems  to  us  sufficient. 

1035.  International  law,  while  recognizing  that  the  sovereign 
of  each  state  has  an  exclusive  right  over  the  things  which  consti- 
tute the  property  of  the  state,  must  determine  also  how  each 
sovereign  state  must  make  use  of  and  enjoy  its  rights  over  that 
property  so  as  not  to  cause  any  prejudice  to  the  interests  of  the 
states  and  peoples  which  co-exist  with  it  in  the  Magna  dvitas. 

The  state  cannot  be  doomed  to  own  the  things  which  constitute  its  patri- 
mony, for  its  right  over  such  tilings  lacks  the  essential  character  of  property, 
the  absolute  power  to  dispose  of  it.  The  patrimonial  rights  of  the  state  are 
subject  to  the  limitations  prescribed  by  the  laws  that  protect  public  interests 
and  the  rights  of  the  state.  In  external  relations,  as  the  exercise  of  the  patri- 
monial rights  of  each  state  may  compete  with  the  interests  of  other  states,  it  in 
indispensable  that  international  law  should  regulate  their  e.xercise  and  enjoy- 
ment in  conformity  with  the  requirements  of  the  existence  in  common  of  all 
the  members  of  the  Magna  dvitas. 

415 


4iG  INTERNATIONAL   LAW    CODIFIED 

THINGS   IN   THE   LEGAL   POSSESSION    OF    EVERY    STATE 

1036.  We  must  regard  as  in  the  exclusive  legal  possession  of 
every  state  the  things  over  which  the  state  has  eminent  domain, 
with  the  power  to  retain  possession  thereof  and  to  defend  it  against 
other  states. 

These  things  consist  of: 
(a)  Physical  territory; 

(6)  Sea,  river  and  lake  waters,  as  far  as  their  boundary  line, 
called  territorial  waters; 

(c)  Colonial  possessions; 

(d)  War  vessels  which,  combined,  constitute  the  fleet; 

(e)  The  islands  that  are  located  in  territorial  waters. 

1037.  Legal  possession  on  the  part  of  a  state  is  effected  through 
the  assertion  of  its  sovereignty  over  things  taken  as  a  whole  uti 
universitas;  and  must  be  regarded  as  extending  to  the  frontier 
which  constitutes  the  line  of  separation  between  the  temtory  of 
t-wo  contiguous  countries. 

Possession  as  exercised  by  a  state  cannot  be  compared  with  that  exercised  by 
a  private  individual.  In  order  that  possession  may  be  considered  as  effected 
by  a  private  individual,  it  is  an  essential  condition  in  the  first  place  that  he 
control  the  thing  with  the  intention  of  exercising  a  right  over  it.  Conse- 
quently, possession  may  be  considered  as  valid  only  if  the  possessor  has  the 
physical  disposition  of  the  thing.  On  the  other  hand,  as  regards  the  sovereign 
state,  possession  must  be  considered  as  effected  through  the  assertion  of  the 
right  of  dominion.  Thus,  it  follows  that  a  sovereign  state  may  be  in  legal  pos- 
session of  a  whole  continent  and  of  its  colonial  possessions  by  the  mere  fact 
that  it  asserts  through  sovereign  acts  its  dominion  over  such  territories  with  the 
intention  of  maintaining  their  possession  and  of  defending  it  against  the  world. 
Therefore,  the  possession  of  the  state  extends  over  all  the  things  that  are  under 
its  rule  and  over  all  its  territory,  whatever  its  extent,  as  far  as  the  boundary 
line,  beyond  which  are  asserted  the  sovereign  rights  of  another  state. 

TERRITORY    OF   THE    STATE 

1038.  The  physical  territory  of  the  state  is  constituted  by  all 
the  contiguous  land  comprised  within  the  limits  of  the  region 
subject  to  its  sovereignty. 

TERRITORIAL    WATERS 

1039.  Territorial  waters,  that  is  to  say,  those  contained  between 
the  shores  of  a  state  and  the  line  that  constitutes  its  maritime  or 


PROPERTY   IN   ITS   RELATIONS   WITH    INTERNATIONAL   LAW      417 

river  boundary,  must  be  deemed  to  be  in  the  juridical  possession 
of  the  territorial  sovereign.  That  sovereign  has  the  right  in  these 
waters  to  regulate  navigation,  transit,  tlie  landing  of  national  and 
foreign  vessels  according  to  the  established  laws  and  regulations, 
and  to  insure  their  enforcement,  without,  however,  preventing  or 
obstructing  the  peaceful  use  of  the  said  waters. 

See  with  respect  to  the  right  of  dominion  of  the  sovereign  state  over  terri- 
torial waters,  rules  265  et  seq.;  on  criminal  jurisdiction,  see  rules  306  et  seq. 


COLONIAL   POSSESSIONS 

'  1040.  Colonial  possessions  must  be  .deemed  within  the  legal 
possession  of  the  state  to  which  they  belong,  in  the  same  manner 
as  any  other  portion  of  the  real  territory  of  the  state,  so  far  as  the 
exercise  of  its  sovereign  rights  is  concerned. 

1041.  The  rights  of  the  state  over  the  colonies  as  against  the 
rights  of  third  powers  must  be  considered  as  coming  under  the 
application  of  the  rules  that  relate  to  the  exercise  of  the  rights  of 
the  different  states  over  their  respective  territories. 

GOVERNMENT   OF    COLONIES 

1042.  The  administrative  and  economic  government  of  each 
colony  must  be  deemed  within  the  exclusive  domain  of  the  public 
law  of  each  countr3^ 

No  state,  however,  may,  without  committing  an  arbitrary  act, 
so  organize  the  government  of  its  colonies  as  to  disregard  the  in- 
ternational rights  of  man,  which  cannot  be  denied  to  colonists  and 
must  be  under  the  protection  of  international  law. 

Compare  rule  109. 

1043.  A  state  which,  for  the  purpose  of  deriving  an  undue  ad- 
vantage out  of  its  colonial  possessions,  sanctions  by  its  law  tlu; 
civil,  economic  and  political  servitude  of  the  colonists  and  disre- 
gards, to  their  prejudice,  the  fundamental  rights  of  civilized 
peoples,  violates  international  law. 

The  subservience  of  colonies,  as  understood  and  practiced  by  some  govern- 
ments which  were  impelled  by  morcarililc  greed  to  found  and  to  maintain 
colonies  so  as  to  enrich  themselves  at  the  exi)ense  of  colonists,  is  contrarj'  ti) 
the  principles  of  modern  law.     The  fact  (hat  colonists  might  have  been  con- 


418  INTERNATIONAL  LAW  CODIFIED 

sidered  outside  the  "common"  law  of  civilized  peoples,  up  to  the  point  of 
denying  them  the  free  enjoyment  of  the  rights  of  man,  may  have  contributed 
toward  the  colonial  policy  of  organizing  labor  in  the  colonies  and  commercial 
monopoly  for  the  exclusive  profit  of  the  mother  country,  and  of  maintaining 
the  civil  and  political  servitude  of  colonists.  The  development  of  civilization 
must,  however,  naturally  lead  to  the  suppression  of  the  system  of  perpetual 
subjection,  which  was  called  colonial  servitude,  and  justify  the  emancipation 
of  colonies. 

The  relation  between  the  colony  and  the  mother-country  must  be  regarded 
as  within  the  domain  of  public  internal  law.  Nevertheless,  it  must  be  admitted 
that  the  autonomy  inherent  in  every  sovereign  state  cannot  justify  the  viola- 
tion of  the  rights  of  the  human  person,  which  must  be  respected  and  protected 
even  with  respect  to  population  less  civilized  than  the  coloni-sts.  Arbitrary 
violation  of  those  rights  and  the  powerlessness  of  the  colonists  to  assure  their 
respect  might  justify  collective  intervention  according  to  the  rules  hereinbe- 
fore mentioned. 

See  rules  556  et  seq. 

ISLANDS 

1044.  Islands  that  maj'-  form  in  territorial  waters  should  be 
considered  in  the  legal  possession  of  the  state  to  which  such  waters 
belong. 

Those  which  may  form  in  the  territorial  waters  of  a  river  belong- 
ing to  several  states  should  be  considered  in  the  legal  possession  of 
each  of  the  riparian  states  so  far  as  they  lie  within  the  respective 
boundary  hues. 

Those  which  form  at  the  mouth  of  a  river  must  be  deemed  in  the 
legal  possession  of  the  state  to  which  belongs  the  territory  where 
the  river  disembogues  into  the  sea  and  are  to  be  regarded  as  a  de- 
pendency of  the  mainland  even  when  they  are  unoccupied. 

Compare:  Perels,  Droit  maritime,  translated  by  Brendt,  who  cites  in  con- 
nection with  the  last  part  of  the  rule  the  decision  of  the  Supreme  Court  of 
Prussia  of  November  28,  1860. 

BOUNDARY   OF  THE   TERRITORY 

1045.  The  boundary  of  every  state  is  formed  by  the  line  of 
separation  which  determines  the  hmit  of  its  territory  and  of  that 
of  the  contiguous  state. 

The  hne  which  constitutes  the  limit  or  boundary  of  contiguous 
territories  may  be  fixed  according  to  a  natural  or  conventional 
demarcation. 

The  former  must  be  regarded  as  indicated  by  the  nature  of  the 
region,  the  position  of  things  and  the  geographical  structure  of  the 


PROPERTY   IN   ITS  RELATIONS   WITH   INTERNATIONAL  LAW      419 

land.     The  latter  may  be  established  as  the  result  of  a  reciprocal 
agreement  of  the  interested  parties. 

1046.  The  boimdar}^  of  every  state  must  be  considered  as  per- 
manently fixed  when  the  states  agree  upon  visible  monuments,  or  in 
their  absence,  when  the  separation  line  is  fixed  by  arbitrators  who, 
taking  into  account  both  natural  lines  and  rights  respectively 
vested,  lay  out  the  boundary  by  erecting  visible  monuments. 

1047.  When  the  boundary  line  is  marked,  the  following  rules 
may  be  observed: 

(a)  To  trace  the  boundary  line  by  observance  of  the  mathe- 
matical line,  but  avoiding  an  inn-easonable  and  harsh  rigorism, 
and  taking  into  account  the  unevenness  of  the  ground,  the  nature 
of  cultivated  soil  and  the  requirements  of  agriculture,  subordinat- 
ing, however,  the  strictly  mathematical  line  to  considerations  of 
equity; 

(6)  Not  to  comphcate  the  difficulty  by  verifying  long  established 
boundaries,  whose  visible  signs  may  have  disappeared,  and  to 
confine  the  work  to  the  tracing  of  the  boundary  in  the  parts  where 
an  actual  uncertainty  exists. 

(c)  To  correct  the  lines  traced  by  nature,  when  necessary  in 
order  not  to  separate  a  connected  series  of  works  or  cultivated 
land. 

BOUNDARY  LINE  AS  REGARDS   CONTERMINOUS   MOUNTAINS 

1048.  When  two  or  more  states  arc  separated  by  a  mountain 
range  and  the  boundary  line  is  not  determined  by  treaties,  or  in- 
dicated by  visible  monuments,  each  state  must  be  regarded  as  en- 
titled to  the  slope  situated  on  its  side  from  the  culminating  point 
or  summit,  and  the  water  shed  must  be  taken  into  account  in  fix- 
ing the  respective  limits. 

The  line  determined  by  the  water  discharge  (water-shed  hne)  is,  in  our 
opinion,  the  line  that  should  serve  to  establish  the  boundary  of  the  mountains 
or  of  the  mountain  range  separating  states.  This  line  may  sometimes  differ 
from  that  indicated  by  the  culminating  points,  as  the  water  shed  is  determined 
by  the  inclination  of  the  slopes  on  one  side  or  the  other. 

MARITIME    BOUNDARY 

1049.  The  maritime  boundary  must  bo  considered  as  fixed  with 
respect  to  any  state  l)y  the  limit  established  in  conformity  with 


420  INTERNATIONAL  LAW  CODIFIED 

customary  law,  or  the  limit  which  may  be  established  by  an  in- 
ternational convention  determining  the  extent  of  territorial  waters. 

Compare  rules  279  el  seq. 

1050.  When  territorial  waters  are  in  the  dominion  of  two 
states,  as  may  be  the  case  when  the  territory  crossed  by  an  open 
sea  belongs  on  the  one  side  to  one  state  and  on  the  other  to  the 
other  state  and  the  sea  is  so  narrow  that  it  constitutes  the  terri- 
torial waters  of  both  countries,  or  when  the  mouth  of  a  river 
is  in  the  limits  of  two  states,  the  boundary  line  of  such  common 
waters  must  be  determined  by  common  agreement,  taking  into 
account  the  median  line  between  the  shores  of  the  two  states. 

BOUNDARY  LINE  WITH  RESPECT  TO  COMMON  NON-NAVIGABLE  RIVERS 

1051.  When  two  or  more  states  are  separated  by  a  common  | 
non-navigable  river,  the  boundary  of  the  two  contiguous  states  " 
must  be  considered  as  established  by  the  intersecting  line,  called 

the  thalweg.  This  hne  must  be  regarded  as  determined  by  the 
median  part  of  the  current  at  the  point  where  the  stream  flows 
with  the  greatest  speed. 

The  thalweg  unquestionably  is  not  the  middle  part  of  the  stream,  but  is 
determined  by  the  intersecting  line  of  the  currents  of  greatest  volume  on  both 
sides.  It  may  be  subject  to  deviations  determined  by  the  depth  of  the  river 
bed  at  different  points,  and  may  be  established  in  navigable  rivers  by  observing 
the  route  of  the  boats  of  greatest  tonnage.  j 

1052.  If  the  river  should  abandon  its  old  bed  and  form  a  new 
one,  the  boundarj'  of  the  two  states  ought  to  be  considered  as  re-  « 
maining  fixed  as  before  with  regard  to  the  old  bed.                                     | 

If  a  gradual  change  has  taken  place  in  the  course  of  the  river, 
the  median  line  should  be  regarded  as  changed  and  each  of  the  two 
states  must  suffer  either  a  diminution  of  territory  or  profit  by  the  | 
actual  accretion. 

BOUNDARY   LINE    OF   NAVIGABLE   INTERNATIONAL   RIVERS 

1053.  The  boundary  line,  as  regards  riparian  states,  of  an  inter- 
national river  must  be  fixed  at  the  limit  of  territorial  waters,  ob- 
serving the  same  rules  as  for  the  maritime  boundary.  Waters 
beyond  this  limit  should  be  assimilated  to  the  open  sea. 


PROPERTY   IN   ITS  RELATIONS    WITH   INTERNATIONAL   LAW      421 

When,  owing  to  its  narrowness,  the  middle  of  the  river  is  not 
situated  beyond  the  respective  territorial  waters  of  the  riparian 
states,  their  boundary  ought  to  be  established  by  application  of 
rule  1051. 

BOUNDARY   LINE    WITH    REGARD   TO    ISLANDS 

1054.  As  to  the  islands  that  form  in  the  middle  of  a  river,  the 
boundar^-^  line  must  be  established  by  taking  into  account  the 
thalweg,  which  ought  to  serve  as  a  basis  to  determine  the  line  of 
division  and  boundary  between  the  two  riparian  states. 


TITLE  III 

METHODS  OF  ACQUIRING  TERRITORY 

« 

1055.  Territory  may  be  acquired  by  a  state: 
(a)  By  annexing  another  state; 

(6)  By  voluntary  cession  of  a  part  of  its  territory,  with  or  with- 
out compensation,  by  the  state  to  which  it  belonged; 

(c)  By  compulsory  cession,  imposed  as  a  condition  of  peace  and 
regulated  by  a  treaty  duly  ratified'; 

(d)  By  the  primary  methods  of  acquisition,  namely,  occupation, 
accession  and  usucaption. 

1056.  Conquest  cannot  be  regarded  as  a  legal  method  of  ac- 
quiring territory,  nor  can  peaceful  conquest  under  the  form  of 
expansion  or  colonial  protectorate,  in  violation  of  the  principles 
of  "common"  law,  be  regarded  as  legitimate. 

See  in  this  work,  rules  1082  et  seq;  Oppenheim,  International 
Law,  V.  I,  2d  ed.,  p.  281  et  seq. 

ANNEXATION 

1057.  When  an  autonomous  state  is  incorporated  into  another, 
voluntarily  or  by  force,  all  its  territory  becomes  an  integral  part 
of  the  state  to  which  it  is  annexed.  This  territory  must  be  con- 
sidered as  in  the  legal  possession  of  the  state  to  which  it  is  annexed 
from  the  moment  the  incorporation  became  effective. 

There  are  numerous  examples  of  annexation  of  one  state  to  another.  The 
independent  state  of  Texas  was  annexed  in  1845  by  the  United  States.  Like- 
wise Hanover  was,  in  1866,  incorporated  with  Prussia,  at  the  same  time  with 
the  Electorate  of  Hesse  and  the  Duchy  of  Nassau. 

On  the  consequences  of  annexation  as  regards  the  exercise  of  sovereign  rights, 
see  rules  140  et  seq. 

CESSION 

1058.  Cession  of  a  portion  of  territoiy  voluntarily  transferred  by 
a  sovereign  in  conformity  with  constitutional  law  produces,  from 

422 


METHODS   OF   ACQUIRING   TERRITORY  423 

the  moment  it  has  become  effective  by  actual  possession  of  the 
state  to  which  it  is  ceded,  the  acquisition  of  that  territory  which 
then  becomes  an  integral  part  of  the  domain  of  the  transferee  state. 
Compulsory  cession  imposed  as  a  condition  of  peace  produces  the 
same  effect  from  the  execution  of  the  treaty  and  its  actual  posses- 
sion by  the  transferee  state. 

For  the  legal  consequences  of  cession  with  regard  to  the  exercise  of  sovereign 
rights  of  the  ceding  state  to  the  transferee  state,  and  of  the  rights  of  the  in- 
habitants of  the  ceded  territory,  see  rules  147  et  seq. 

ACQUISITION    or   TERRITORY   BY   OCCUPATION 

1059.  The  acquisition  of  territory  by  occupation  can  only 
take  place  in  regions  which  are  not  in  the  legal  possession  of  another 
state. 

1060.  Countries  which  are  a  part  of  a  continent  inhabited  by 
civilized  peoples  with  an  established  govermnent,  although  not 
actually  occupied  by  the  people,  cannot  be  regarded  as  unoccupied 
territory.  Consequently  the  claim  of  a  state  which  undertakes  to 
apply  to  such  regions  the  principles  governing  unoccupied  terri- 
tory must  be  regarded  as  contrary  to  international  law. 

Compare  rules  1036  and  1037. 

1061.  Countries  which  are  not  in  the  legal  possession  of  any 
civilized  state,  but  which  are  inhabited  by  savage  tribes  may  be 
acquired  by  occupation;  limiting  it,  however,  to  the  portions  of 
territory  unused  by  the  natives  and  in  which,  by  reason  of  the 
disproportion  between  their  area  and  their  needs,  they  cannot 
apply  the  ordinary  means  of  exploitation  to  render  them  produc- 
tive. 

1062.  Occupation  by  force  of  a  country  actually  inhabited  by 
savage  tribes  must  be  considered  as  a  disguised  form  of  conquest. 

Any  state  which  desires  to  occupy  territory  inhabited  by  un- 
civilized tribes,  without  violating  international  law,  must  negotiate 
with  them  and  obtain  a  cession  by  payment  of  compensation. 
Moreover,  while  always  excluding  every  form  of  violence  against 
persons  and  every  other  violent  means  of  forcing  the  natives  to 
cede  their  surplus  territory,  the  indirect  and  passive  means  foi 
inducing  them  to  yield  their  territory  to  colonization  must  be 
regarded  as  lawful. 


424  INTERNATIONAL    LAW    CODIFIED  { 

Countries  inhabited  by  savage  tribes,  governed  by  chiefs  elected  according 
to  their  custom,  must  be  regarded  as  invested  with  sovereign  power  and  can- 
not in  truth  be  considered  as  territories  without  a  sovereign.  Therefore,  we 
cannot,  in  principle,  admit  that  the  occupation  of  these  countries  can  take 
place  in  the  same  way  as  in  countries  actually  unoccupied,  however  praise- 
worthy may  be  the  object  of  states  desiring  to  occupy  these  countries  for  the 
purposes  of  civilization.  We  cannot,  indeed,  admit  that  civilization  may  be 
promoted  by  armed  force.  Our  rule,  therefore,  seeks  to  render  obligatory  the 
qualifications  'mentioned. 

1063.  A  state  which  has  succeeded  in  occupying  a  country  by 
any  method,  and  which  intends  to  retain  possession,  is  bound  to 
notify  the  fait  accompli  through  diplomatic  channels  in  order  to 
put  the  other  states  upon  notice  to  enter  contesting  claims.  They 
must,  moreover,  establish  in  the  country  occupied  an  authority 
clothed  with  sufficient  power  to  maintain  order  and  to  assure  the 
freedom  of  commerce. 

In  the  general  and  final  act  of  the  Conference  of  Berlin,  signed  February  26, 
1885,  by  Austria,  Denmark,  France,  Germany,  Great  Britain,  Italy,  the 
Netherlands,  Luxemburg,  Portugal,  Russia,  Spain,  Sweden,  Norway,  Turkey 
and  the  United  States,  the  following  rules  were  established  for  the  subsequent 
occupation  of  regions  of  the  African  continent: 

Art.  34.  The  power  which  henceforth  takes  possession  of  a  tract  of  land  on 
the  coasts  of  the  African  continent,  outside  of  its  present  possessions,  or  which, 
being  hitherto  without  such  possessions,  shall  acquire  them,  as  well  as  a  power  | 

which  assumes  a  protectorate  there,  shall  accompany  the  respective  act  with 
a  notification  thereof  addressed  to  the  other  signatory  powers  of  the  present 
act,  in  order  to  enable  them,  if  need  be,  to  make  good  any  claims  of  their  own. 

Art.  35.  The  signatory  powers  of  the  present  act  recognize  the  obligation 
to  insure  the  establishment  of  authority  in  the  regions  occupied  by  them  on 
the  coasts  of  the  African  continent,  sufllicient  to  protect  e.xisting  rights,  and,  as 
the  case  may  be,  freedom  of  trade  and  of  transit  under  the  conditions  agreed 
upon. 

WHEN    OCCUPATION   MAY   BE    CONSIDERED   AS   EFFECTIVELY 

ESTABLISHED 

1064.  Every  state  may  undertake  to  bring  about  the  exploration 
of  deserted  countries  which  are  not  in  the  domain  of  another  state 
and  to  effect  the  occupation  thereof  with  the  intention  of  acquiring 
sovereignty. 

1065.  Occupation  can  be  effected  only  by  effective  possession, 
uninterrupted  and  permanent,  of  the  territory  desired,  in  the  name 
of  the  state.  This  effective  possession  cannot  arise  from  a  mere 
diplomatic  notification.  The  actual  exercise  of  sovereign  power  is 
indispensable. 


METHODS    OF   ACQUIRING    TERRITORY  425 

By  the  terms  of  articles  34  and  35  of  the  general  act  of  the  Conference  of 
Berlin  above  mentioned,  the  diplomatic  notification  is  required  to  confirm 
the  taking  of  possession;  but  possession  can  be  considered  as  eflfective  only 
when  the  occupying  state  establishes  in  the  occupied  territory  an  authority 
capable  of  assuring  respect  for  the  rights  acquired  and  for  the  freedom  of 
trade  and  transit. 

1066.  The  taking  possession  of  regions  discovered  by  explorers, 
in  the  name  of  their  country,  cannot  suffice  to  make  effective  an 
occupation  by  the  state,  unless  the  latter  has,  in  fact,  undertaken 
acts  in  its  own  name  to  confirm  its  rights  of  sovereignty  over  these 
regions.  Indeed,  the  exercise  of  sovereign  rights  in  some  effective 
and  permanent  manner  is  alwaj'^s  necessary  to  establish  the  acqui- 
sition of  newly  discovered  territory. 

1067.  Discovery  of  a  country  by  unauthorized  individuals 
without  the  support  or  approval  of  their  government  may  be 
considered  as  sufficient  to  accord  to  the  state  of  which  they  are 
citizens  the  right  of  occupying  this  region  in  preference  to  any 
other  state.  It  is,  however,  incumbent  upon  the  government 
which  has  been  notified  of  the  discovery  and  which  proposes  to 
profit  by  it,  to  notify,  through  diplomatic  channels,  its  intention 
to  occupy  the  newly  discovered  territory;  and  it  is  always  essen- 
tial that  it  take  possession  and  exercise  sovereign  rights  in  the 
territory  to  render  its  occupation  effective. 

Even  if  the  individuals  who  have  discovered  a  new  territory  have  raised 
thereon  the  national  flag  or  left  an  inscription  on  a  momument  erected  by 
them,  or  set  up  other  evidences  of  discovery  to  fix  the  priority  thereof,  they 
cannot  be  considered  by  this  fact  alone  as  having  established  occupation  in  the 
name  of  their  national  state.  It  is  always  indispensable  that  the  state  exercise 
sovereign  rights  in  its  own  name. 

1068.  The  period  within  which  the  state  must,  in  order  to  render 
its  occupation  effective,  proceed  with  the  occupation  of  territory 
discovered  by  its  nationals  should  be  established  uniformly  by  a 
Congress.  In  the  absence  of  such  an  agreement,  however,  after 
the  expiration  of  a  reasonable  time  for  occupation,  if  the  gov- 
ernment has  undertaken  no  act  with  that  end  in  view,  it 
must  be  presumed  that  it  has  tacitly  renounced  its  right  of  pref- 
erence. 

1069.  Inasmuch  as  the  occupation  must  take  effect  by  means  of 
acts  of  possession  or  appropriation  carried  out  in  the  name  of  the 
state,  the  acriuisition  of  territory  must  extend  to  all  parts  which, 


426  INTERNATIONAL   LAW   CODIFIED 

acconiing  to  rational  principle,  the  nature  of  things  and  the  physi- 
cal configuration  of  the  country,  constitute  a  whole. 
Compare  rule  1037. 

EXTENT   OF   OCCUPATION 

1070.  The  effects  of  taking  possession  or  appropriation  cannot 
extend  to  places  where  there  already  exist  rights  acquired  by 
another  state,  even  though  unexercised,  unless  there  is  a  presump- 
tion of  abandonment. 

1071.  A  state  which  is  in  legal  possession  of  the  mouth  of  a  river 
cannot  thereby  be  considered  as  having  occupied  the  entire  hydro- 
graphic  basin  of  the  river,  if  it  has  undertaken  no  act  of  sover- 
eignty or  appropriation  with  respect  to  the  various  regions  which 
are  parts  of  the  basin. 

The  hydographic  basin  of  a  river  is  very  complex  and  may  comprise  territory 
completely  distinct,  according  to  the  hydography  and  the  orography.  There- 
fore, on  principle,  the  possession  of  the  mouth  of  a  river  cannot  imply  the  occu- 
l)ation  and  acquisition  of  .the  entire  basin  of  the  river.  This  difficulty  was 
prominent  in  the  controversy  between  the  United  States  and  Spain  with  re- 
spect to  the  western  boundary  of  Louisiana  in  1815,  and  in  that  between  Great 
Britain  and  the  United  States  with  respect  to  the  Oregon  territory  in  1846. 

It  is  freely  admitted  that  when  a  state  possesses  the  mouth  of  a  navigable 
river,  it  has  within  its  control  a  natural  instrument  for  penetrating  into  the 
entire  region  constituting  the  basin,  but  it  cannot  be  admitted  that  the  pos- 
session of  the  mouth  alone  involves  possession  of  all  the  country  comprising  the 
hydrographic  basin,  although  by  reason  of  their  hydrographic  and  orographic 
(configuration  they  constitute  a  single  and  homogeneous  whole. 

1072.  A  state  which,  without  violating  the  principles  of  "com- 
mon" law,  has  occupied  the  regions  occupied  by  savage  tribes  not 
formed  into  a  political  association,  and  which  has  appropriated  the 
territory,  may  be  considered  as  having  effected  the  acquisition  of 
all  the  country  inhabited  by  the  barbarous  tribes  which  have 
recognized  its  sovereignty. 

The  legal  possession  of  the  regions  occupied  must  be  con- 
sidered also  as  extending  to  those  of  which  the  occupying  state 
has  granted  the  use,  under  private  title,  to  individuals.  Conse- 
quently, a  third  power  claiming  to  have  acquired  these  regions, 
in  whole  or  in  part,  from  the  natives,  cannot  thereby  invalidate 
the  rights  already  acquired  by  the  first  occupying  state,  confirmed 
by  its  appropriation  of  all  the  country,  not  excluding  the  territory 


METHODS   OF  ACQUIRING    TERRITORY  427 

which  it  had  alreadj'-  granted  to  tho  use  and  occupation  of  individ- 
uals. 

ACQUISITION   OF   TERRITORY   BY    A.CCESSION" 

1073.  A  state  acquires  the  portions  of  land  which,  by  natural 
'  causes,  happen  to  unite  in  a  permanent  manner  with  the  terri- 
tory which  is  actually  and  effectively  in  its  legal  possession.  As 
such  portions  of  land  we  must  consider  the  accretions  which, 
through  alluvion,  form  along  the  sea  shore  or  the  banks  of  a  river, 
the  islands  which  form  within  the  limits  of  the  territorial  waters 
of  a  state,  and  the  accretion,  even  if  gradual,  resulting  from  the 
shifting  bed  of  a  river. 

1074.  Islands  which  form  at  the  mouth  of  a  river,  and  especially 
deltas,  must  be  regarded  as  acquired  by  acquisition  by  the  state 
to  which  the  nearest  bank  belongs. 

In  the  Treaty  of  Berlin  of  1878,  article  XLVI  provides  that  "islands  formed 
in  the  delta  of  the  Danube,  as  well  as  the  Island  of  Serpents,  etc.,  shall  belong 
to  Roumania." 

A  controversy  arose  between  the  United  States  and  Great  Britain  with 
Tespect  to  an  island  which  had  formed  at  the  mouth  of  the  Mississippi,  which 
Great  Britain  claimed  as  its  own  by  reason  of  discovery  by  an  Englishman. 
In  principle  it  cannot  be  assumed  that  islands,  even  though  not  occupied  by 
the  state  within  whose  possession  are  the  waters  in  which  the  island  forms, 
can  be  regarded  as  res  nullius.  They  must  be  considered  as  a  dependent  terri- 
tory of  the  state  and  deemed  to  be  comprised  among  the  things  within  its  legal 
possession. 

1075.  If,  between  two  states  separated  by  a  watercourse,  a 
considerable  portion  of  territory  belonging  to  one  should  be  de- 
tached by  force  of  a  cataclysm  and  incorporated  into  the  territory 
of  another,  the  latter  would  acquire  it  by  accession.  Neverthe- 
less, if  the  land  detached  were  considerable  and  could  be  recog- 
nized, the  acquiring  state  ought  to  pay  an  indemnity  to  the  other 
state  or  to  the  private  owners.  And  this  indemnity  ought  to  be 
fixed  by  treaty  or  submission  to  arbitration. 

Should  the  lands  carried  away  be  woodland  belonging  to  the 
state  or  private  owners,  and  if  a  considerable  quantity  of  wood  had 
been  carried  off  by  the  violence  of  the  waters  of  the  river  to  the 
opposite  bank,  the  state  or  private  individuals  to  whom  the  wood 
belonged  might  claim  it  and  the  other  state  would  be  obliged  to 
restore  it. 


428  INTERNATIONAL   LAW    CODIFIED 

ACQUISITION    BY    USUCAPTION 

1076.  Usucaption  ma}'  be  considered  as  a  mode  of  acquisition 
with  respect  to  certain  contiguous  regions  which  may  be  regarded 
as  abandoned  by  the  state  to  wliich  they  belong  and  which  are 
effectively  occupied  in  the  name  of  an  adjacent  state. 

1077.  Usucaption  can  be  effective  between  two  states,  so  as  to 
modify  their  respective  rights  over  certain  territory  situated  near 
their  respective  boundaries  only  when  the  state  which  claims  to 
have  acquired  these  territories  by  usucaption  has  actually  occupied 
them  and  exercised  sovereign  rights  in  a  notorious  and  continuous 
manner  without  opposition  on  the  part  of  the  other  state  and  has 
exercised  its  legal  possession  uninterruptedly  and  for  a  sufficient 
length  of  time  to  legitimize  its  acquisition. 

1078.  The  length  of  time  should  be  established  by  agreement 
among  the  nations.  In  the  absence  of  such  agreement  it  must  be 
fixed  in  such  a  way  as  to  justify  a  presumption  of  the  abandonment 
of  sovereign  rights  on  the  part  of  the  state  against  which  title  is 
claimed. 

This  presumption  must  be  considered  as  founded  on  immemorial 
possession,  but,  if  it  concerns  the  acquisition  of  unimportant 
territory,  a  possession  for  fifty  years  might  be  considered  as  suffi- 
cient. 

Many  controversies  concerning  the  acquisition  of  certain  portions  of  the 
American  continent  took  place  between  the  European  states  which  founded 
their  respective  rights  upon  occupation  and  upon  long  continued  possession. 

Compare  Calvo,  Droit  inter TMtional  public,  §§  283  et  seq.,  §§  1692  et  seq. 

TITLE   BY   ACQUISITIVE    PRESCRIPTION 

1079.  Acquisitive  prescription  cannot,  in  principle,  be  deemed  a 
legal  method  of  acquiring  territorial  sovereignty  over  a  country, 
based  upon  the  exercise  of  sovereign  rights  for  a  certain  period. 
According  to  international  law  the  claim  of  a  third  state  which 
asserts  a  legitimate  title  to  a  given  territory  by  acquisitive  pre- 
scription cannot  be  supported.  It  may  be  admitted,  however, 
that  possession  de  facto,  although  not  legally  legitimate  originally, 
if  established  and  maintained  during  a  considerable  number  of 
years,  which  should  be  definitely  fixed,  may  ripen  into  a  title  by 
acquisition  by  virtue  of  the  respect  due  to  accomplished  facts. 


METHODS   OF   ACQUIRING   TERRITORY  429 

Acquisitive  prescription  is  regulated  by  the  civil  law  as  a  mode  of  acquisi- 
tion among  individuals.  Nevertheless,  it  can  be  considered  as  based  upon 
rational  law,  which  is  equally  applicable  to  states  constituting  the  interna- 
tional society. 

See  Fiore:  Nuovo  Dirilto  inlernazionale  pubblico,  secondo  i  hisogni  della  civiltd 
nioderna  (Milan,  1865),  Sect.  II,  Chap.  V,  p.  181,  and  the  translation  of  Pradier- 
Fodere  (Paris,  1868),  pp.  389,  394;  Fiore,  Parere  giuridico  sidla  questione  tra 
U  PeriX  c  VEqualore,  Naples,  1906,  pp.  52,  54. 

1080.  Any  state  which  is  in  de  facto  possession  of  a  territory  may 
assert  the  right  of  continuing  its  possession  and  defending  it.  It 
may  be  regarded  as  a  status  of  fact,  to  be  respected  by  other  states, 
so  long  as  the  third  power  which  seeks  to  contest  its  possession  has 
not  estabhshed  its  own  legitimate  rights  by  conclusive  proof. 

1081.  The  claim  of  a  third  power  contesting  the  de  facto  posses- 
sion cannot  be  asserted  during  an  indefinite  period.  A  limit  must 
be  fixed,  admitting  that,  in  principle,  time  may  validate  every- 
thing and  that  one  cannot  indefinitely  controvert  the  initial  ac- 
quisition. 

A  de  facto  possession,  maintained  for  a  long  period  of  years, 
fixed  and  determined,  must  be  regarded  as  an  obstacle  to  the  ad- 
mission of  the  contesting  claim  and  may  validate  the  acquisition 
by  virtue  of  prescription. 

International  law  does  not  furnish  any  rules  for  determining  the  number  of 
years  required  for  acquisitive  prescription  of  sovereignty  nor  for  ascertaining 
the  required  conditions.  Nevertheless,  we  believe  that  the  principle  of  pre- 
scription is  indispensable  in  the  interests  of  the  security  of  states  and  the  as- 
surance of  peace.  Even  though  the  original  title  of  acquisition  may  be  unlaw- 
ful, if  the  defnclo  established  possession  could  be  forever  contested,  disastrous 
consequences  would  follow,  with  a  verital)le  chaos  among  the  states  of  Europe 
as  well  as  of  America.  We  admit,  therefore,  the  necessity  of  some  kind  of 
acquisitive  prescription  in  international  law.  There  should  be  referred  to  the 
decision  of  a  conference  of  states  the  delicate  question  of  determining  the 
conditions  for  its  application  and  for  the  validity  of  de  facto  possession,  as  a 
final  answer  to  the  claim  of  another  state.  (See  infra,  concerning  Conferences 
of  states). 

The  principal,  or  substantial  reasons,  which  ought  to  be  the  basis  for  deci- 
sion in  this  matter,  should  be  founded  on  the  present  state  of  facts  concerning 
the  territory  in  dispute.  It  would  be  nc^cessary  to  ascertain  whether  the  popu- 
lation has  recognized  the  authority  of  the  sovereign  who  has  exercised  author- 
ity there,  and  for  how  long  a  period  the  state  has  exercised  its  rights  of  control 
and  jurisdiction  over  the  country  and  the  population. 

1082.  Acquisitive  prescription  can  have  no  value  in  the  acquisi- 
tion f)f  .sovereign  rights  as  against  tlie  people  who  inhabit  a  terri- 
tory to  take  by  prescription  the  absolute  and  intangil)le  right  of 


430  INTERNATIONAL   LAW   CODIFIED 

the  people  to  recognize  or  deny  the  sovereign  power  established  and 
exercised  over  them. 

This  may  find  its  application  in  connection  with  possessions 
acquired  by  conquest,  colonial  protectorate,  or  by  means  of  spheres 
of  influence  (hinterland)  although  these  measures  do  not  constitute 
legitimate  modes  of  acquisition. 

See  further,  rules  1087  et  seq.,  and  1093. 

Sovereign  power  belongs  in  reality  to  the  people  and  can  be  exercised  legit- 
imately only  by  him  who  has  been  invested  with  superior  authority  by  the 
people  themselves.  This,  however,  relates  to  the  legitimate  power  established 
according  to  constitutional  law  and  in  this  respect  prescription  is  absolutely 
inoperative.  Is  the  right  of  the  people  to  govern  themselves  as  they  wish  sus- 
ceptible of  prescription?  No  dynasty,  however  long  its  power  may  last,  can 
establish  its  right  as  against  the  people  by  acquisitive  prescription.  On  the 
other  hand,  from  the  point  of  view  of  international  law,  inasmuch  as  he  who 
governs  de  facto  must  be  considered  as  sovereign,  it  must  be  admitted  that  that 
fact,  provided  it  be  confirmed  by  long  usage  or  duration,  may  constitute  a  just 
title  to  sovereignty. 

CONQUEST 

1083.  Conquest,  which  consists  in  the  occupation  by  force  of 
the  territory  of  another  state,  cannot  per  se  be  considered  a  legally 
valid  title  to  the  occupied  territory.  It  must  always  be  considered 
as  illegal  according  to  modern  international  law,  whatever  its 
purpose  may  be. 

1084.  Conquest  can  never  be  a  legitimate  purpose  of  war.  It 
cannot  be  justified  by  the  military  occupation  of  a  part  of  the 
enemy  territory  and  by  its  forced  cession,  imposed  upon  the  van- 
quished people  as  a  condition  of  peace.  It  is  necessary  to  apply 
the  rules  governing  the  validity  of  treaties  of  peace  in  order  to 
decide  whether  the  victor  may  appropriate  a  portion  of  the  con- 
quered territory. 

Compare  rules  241,  242,  559,  and  infra,  concerning  the  vaUdity  of  treaties 
of  peace. 

1085.  No  state  may  justify  the  right  of  conquest  either  by  the 
theory  of  the  balance  of  power  or  by  invoking  the  utihty  of  the 
formation  of  a  great  national  state,  or  by  the  diffusion  of  civiliza- 
tion and  promotion  of  progress.  The  appropriation  of  the  terri- 
tory of  another  state  by  force  and  its  incorporation  must  be  con- 
sidered illegitimate  under  the  principles  of  law. 

1086.  Although  conquest  per  se  cannot  constitute  a  legitimate 


METHODS   OF  ACQUIRING   TERRITORY  431 

mode  of  acquisition,  nevertheless,  when  it  is  accomplished,  when 
the  new  conditions  have  by  degrees  been  gradually  accepted  by  the 
population,  and  when  the  fact,  illegal  in  its  origin,  has  been  grad- 
ually legalized,  conquest  may  result  in  the  acquisition  of  conquered 
territory,  by  reason  of  the  necessity  of  accepting  an  established 
condition  strengthened  by  time  and  of  respecting  accomplished 
facts. 

Compare  rules  1079,  1082,  and  the  corresponding  notes.    See  Oppenheim, 
International  Law,  §  236,  2d  edition,  pp.  302  et  seq. 


COLONIAL   PROTECTORATE 

1087.  A  protectorate  may  be  deemed  a  legitimate  mode  of  ac- 
quiring territory  inhabited  by  uncivilized  tribes  only  when  es- 
tablished in  accordance  with  the  principles  of  conventional  law 
and  when  notified  to  the  other  powers,  indicating  the  regions  over 
which  it  is  asserted  and  showing  that  it  does  violate  the  principles 
of  "common"  law. 

According  to  article  34  of  the  Treaty  of  Berlin  of  February  26,  1885,  the 
state  intending  to  assume  a  protectorate  is  obliged  to  notify  the  other  powers 
signatory  to  the  act  that  it  has  undertaken  a  protectorate  over  the  country 
named;  but,  aside  from  such  notification,  the  protectorate  must  become  effec- 
tive. 

The  protectorate  over  barbarous  countries  may  be  justified  on  the  ground  of 
promoting  civihzation.  Hence,  it  is  indispensable  for  the  protecting  state 
to  effectively  encourage  the  development  of  all  kinds  of  civilizing  activity 
in  the  regions  under  its  protection.  Should  it  do  otherwise,  and  should 
the  inactivity  of  the  protecting  state  continue  for  an  excessive  period,  another 
power  cannot  be  denied  the  right  of  substituting  itself  for  the  protecting  power. 
It  seems  to  us,  therefore,  that  the  validity  of  a  protectorate  is  subject  to  the 
application  of  the  same  rules  as  the  validity  of  occupation.  This  is  the  basic 
idea  of  the  rules  which  we  have  proposed. 

1088.  No  state  may  establish  a  protectorate  in  Africa  or  in  other 
uncivilized  countries  by  mere  notification.  The  protecting  state 
must,  in  addition,  undertake  other  acts  to  render  its  right  effective, 
namely : 

(a)  Establish  a  regular  government,  capable  of  protecting  the 
rights  of  individuals  and  assuring  the  freedom  of  commerce; 

(6)  Establish  and  assure  order,  peace  and  the  exercise  and  legal 
enjoyment  of  rights; 

(c)  Do  everything  which  a  state  is  bound  to  do  in  order  to  render 
occupation  of  territory  by  occupation  valid. 


432  .  INTERNATIONAL  LAW   CODIFIED 

1089.  A  mere  verbal  notification,  not  followed  by  any  act  of 
sovereignty  and  jurisdiction,  cannot  be  regarded  as  an  effective 
means  of  justifying  the  protectorate  as  an  exclusive  right,  when 
such  notification  is  not  followed  by  other  acts  required  to  make  it 
effective. 

1090.  The  treaties  concluded  by  the  colonizing  state  with  the 
natives  who  have  ceded  the  sovereignty  over  the  territory  in 
which  they  live,  assuming  that  the  notification  and  the  other  rules 
above  mentioned  have  not  been  observed,  cannot  per  se  legally 
constitute  a  valid  cession  upon  which  to  base  the  legitimacy  of  the 
acquisition  of  territorial  sovereignty. 

It  may  be  noted  that  cessions  agreed  upon  with  the  natives  cannot  per  se 
alone  suffice  for  the  acquisition  of  territorial  sovereignty  because  barbarous 
tribes  have  not  the  same  conception  of  sovereignty  that  prevails  among  civil- 
ized states  and  consequently  cannot  transfer  what  they  are  not  conscious  of 
possessing. 

Compare  rules  877  et  seq.;  Fiore,  Del  Proleltorale  coloniale,  Memoria  alia 
Reale  Accademia  di  Napoli,  v.  XXVI,  and  Traltalo  di  dirilto  internazionale 
pubblico,  4th  ed.,  v.  II  Appendix,  p.  628. 

1091.  The  colonial  protectorate,  supposing  it  to  be  effectively 
established,  cannot  be  deemed  to  extend  beyond  the  limits  within 
which  it  may  be  regarded  as  effective.  Its  extent  must  be  deter- 
mined in  accordance  with  the  rules  applicable  to  the  extension  of 
title  acquired  by  occupation. 

If  a  protectorate  could  be  acquired  by  mere  notification  it  might  comprise 
an  enormous  extent  of  territory,  much  in  excess  of  that  in  which  the  protecting 
state  may  effectively  exercise  its  sovereign  rights.  But  the  nominal  protec- 
torate does  not  seem  to  us  sufficient  to  create  an  exclusive  right  in  the  protect- 
ing state  which  has  proclaimed  and  notified  it. 

1092.  It  is  within  the  domain  of  international  law  to  determine 
the  legal  conception  of  a  protectorate  and  to  regulate  it  in  accord- 
ance with  sound  principles,  so  that  it  may  not  become  an  expedient 
through  which  to  effect,  by  unlawful  means,  the  gradual  expansion 
of  the  colonial  possessions  of  any  state,  and  thus  justify  a  dis- 
guised form  of  conquest. 

SPHERES    OF    INFLUENCE    (hINTERLAND) 

1093.  The  sphere  of  influence,  established  in  common  accord 
by  a  treaty  in  the  interest  of  each  of  the  contracting  parties,  can- 
not be  deemed  sufficient  per  se  to  attribute  to  the  favored  state 


METHODS  OF  ACQUIRING  TERRITORY  433 

the  right  to  acquire  the  territories  indicated  and  comprised  within 
the  hne  estabhshed  as  the  boundary  of  its  colonial  activity. 

1094.  Any  state  may  voluntarily  limit  the  development  of 
its  activity  in  barbarbous  countries  to  the  advantage  of  another 
state,  but  the  reciprocal  obligations  must  be  regarded  as  valid  only 
between  the  contracting  parties.  They  may  not  entitle  either 
party  to  the  right  of  territorial  sovereignty  over  the  territory 
within  their  respective  spheres  of  influence. 

The  development  of  the  activity  of  each  state  may  lead  to  the 
acquisition  of  territorial  sovereigntj'  onlj-^  when  accomplished  with- 
out violation  of  the  principles  of  international  law. 

1095.  The  right  to  colonize  and  to  extend  colonial  possessions 
in  barbarous  countries  may  be  justified  on  grounds  based  upon 
moral,  economic  and  political  considerations,  but  on  condition  of 
maintaining  intact  the  superior  principles  of  justice  and  the  su- 
premacy of  law. 

The  fundamental  question  of  the  right  on  the  part  of  civihzed  states  to  colo- 
nize barbarous  countries  and  to  extend  civilization  by  means  of  spheres  of 
influence  is  naturally  a  complex  one.  It  may  rightfully  be  claimed  that  a 
certain  ratio  between  the  extent  of  territory  and  the  number  of  its  inhabitants 
is  indispensable,  and  that  it  is  extremely  useful  to  open  up  new  outlets  to  the 
activity  of  civilized  peoples,  in  order  to  enable  them  to  extend  the  field  of 
their  activity  and  production,  so  as  to  satisfy  their  ever  increasing  needs 
through  an  increase  of  wealth.  Yet  this  could  not  justify  the  employment  of 
any  means  to  attain  that  noble  end.  It  must  always  be  remembered  that  in  the 
Magna  civilas  the  supremacy  of  law  must  be  maintained  intact,  and  that  on 
civilized  states  is  imposed  the  supreme  duty  of  not  disregarding  the  principles 
of  international  law  in  their  relations  with  uncivilized  peoples.  The  whole 
question  of  colonization  and  expansion  by  means  of  spheres  of  influence  must 
be  governed  by  these  high  conceptions. 

1096.  The  sphere  of  influence  recognized  by  one  or  more  states 
in  favor  of  another  state  can  never  be  assumed  to  authorize  the 
state  in  whose  favor  it  is  established  to  act  with  arbitrary  freedom 
and  to  carry  out  a  disguised  conquest. 

There  are  numerous  treaties  relating  to  spheres  of  influence,  among  which 
may  be  mentioned  the  following: 

Clormany  and  Great  Britain,  for  East  .Africa  and  Zanzibar,  of  November  1, 
1886,  and  July  1,  1890;  and  for  Central  Africa,  of  November  15,  1893. 

Great  Britain  and  Italy,  for  East  Africa,  of  March  24,  and  April  15,  1891. 

France  and  Portugal,  for  Guinea  and  Congo,  of  May  12,  1891. 

Portugal  and  Congo,  of  May  25,  1891. 

Great  Britain  and  Portugal,  for  Central  South  Africa,  of  June  11,  1891. 

Germany  and  Groat  Britain,  of  Novc'iiilx-r  15,  1893,  for  determining  their 
respective  spheres  of  influence  in  the  Gulf  of  Guinea. 


434  INTERNATIONAL   LAW   CODIFIED 

Germany  and  France,  of  February  4,  1894,  for  determining  their  respective 
spheres  of  influence  in  the  Lake  Tchad  region  in  Africa. 

Compare:  Despagnet,  Les  occupations  de  territoires  et  le  procede  de  V hinter- 
land; Bonfils,  Manuel  de  droit  international  public,  3d  ed.,  by  Paul  Fauchille, 
1901,  XV,  558;  Ernest  Nys,  Le  droit  international:  Les  prindpes,  les  theories, 
les  fails,  v.  II,  pp.  28  et  seq. 

1097.  International  law  must  fix  the  legal  organization  of  colo- 
nial policy  and  regulate  by  just  principles  the  rational  expansion 
of  the  respective  domains  of  the  colonizing  states. 

COMMUNITY   OF   INDIVISIBLE   TERRITORY 

1098.  Community  may  take  place  between  two  or  more  states 
which  have  rights  of  property  over  an  indivisible  possession. 

1099.  Each  of  the  states  in  common  ownership  is  bound  to  do 
whatever  is  necessary  to  maintain  the  common  possession  under 
the  conditions  required  for  its  final  purpose,  and  not  to  do  anything 
which  may  prevent  its  enjoyment  or  prejudice  their  respective 
interests. 

This  rule  may  find  its  application  in  the  case  of  a  bridge  uniting  two  adjacent 
countries.  Each  has  the  right  to  prevent  the  other  from  injuring  its  own  part 
of  the  bridge,  rendering  it  unfit  for  use,  and  may  require  the  other  to  undertake 
whatever  may  be  necessary  to  render  it  fit  for  its  purpose. 

The  rule  may  also  be  applied  with  respect  to  rivers  flowing  through  or  be- 
tween two  states.  Thus,  the  upper  state  cannot  alter  a  watercourse,  stream 
or  river,  to  the  prejudice  of  the  lower  state;  neither  can  it  modify  the  water- 
course by  means  of  falls,  or  build  any  work  likely  to  affect  the  flow  of  water 
or  impair  such  flow  through  the  territory  of  the  lower  state. 

INTERNATIONAL   SERVITUDES 

1100.  An  international  servitude  is  a  territorial  right  in  favor 
of  one  state  over  the  territory  of  another  state.  It  can  be  consti- 
tuted only  by  virtue  of  a  title. 

There  are  many  examples  of  international  servitudes.  Under  the  treaty  of 
Utrecht  of  March  13-April  11,  1713,  Great  Britain,  to  which  France  ceded  the 
island  of  Newfoundland,  granted  to  France  the  right  of  fishing  on  certain 
shores  of  the  island,  and  of  using  the  banks  to  dry  their  fish,  and  of  erecting 
on  certain  coasts  buildings  necessary  to  conduct  the  fishery.  This  servitude 
was  confirmed  in  Article  5  of  the  Treaty  of  Paris  of  February  10,  1763,  modified 
by  the  treaty  of  Westphalia  of  September  3,  1783.  The  fishery  constituted 
the  object  of  provisional  agreements  between  France  and  Great  Britain  in 
1857,  1884,  1885,  1890  and  1891,  and  gave  rise  to  a  convention  of  arbitration 
signed  at  London  March  11,  1891. 

Another  example  of  such  servitude  is  found  in  the  right  of  passage  granted 
to  Prussia  to  communicate  with  its  Rhenish  provinces,  which  it  could  reach 
only  through  Brunswick,  Hanover  and  Hesse. 


METHODS    OF   ACQUIRING   TERRITORY  435 

Another  case  of  international  servitude  is  contained  in  the  treaty  concluded 
in  1873  between  Russia,  the  Emir  of  Bokhara  and  the  Khan  of  Khiva,  by 
which  Russia  acquired  the  right  to  build  bridges,  custom  houses  and  landings 
on  the  left  bank  of  the  Amu-Daria. 

These  servitudes,  which  are  true  territorial  servitudes,  must  not  be  confused 
with  others,  also  named  international  servitudes,  but  which,  in  reality,  are 
limitations  of  the  right  of  sovereignty  and  consist  in  the  fulfillment  of  a  per- 
sonal obhgation,  such  as  the  dismantling  of  fortresses,  or  the  construction  of 
certain  works  to  maintain  a  strait  in  a  navigable  condition.  A  servitude 
proper  always  implies  the  active  exercise  of  a  territorial  right  and  a  passive 
,  obhgation  on  the  part  of  the  servient  state. 

The  name  servitude  is  also  applied  to  certain  limitations  upon  the  rights  of 
territorial  sovereignty,  such  as  the  servitude  not  to  build  either  fortresses  or 
military  establishments  imposed  upon  one  state  for  the  advantage  of  another 
state.  Thus,  under  article  29  of  the  Treaty  of  Berlin  of  1878,  there  was  im- 
posed on  Montenegro  a  subjection  to  the  exercise  of  maritime  and  sanitary 
police  on  the  part  of  Austria  at  Antivari  as  well  as  on  the  coasts  of  the  Adriatic 
Sea. 

[The  United  States  supported  its  principal  contention  under  Question  1 
of  the  North  Atlantic  Coast  Fisheries  Arbitration  compromis  with  Great 
Britain,  1910,  on  the  assertion  that  the  treaties  of  1783  and  1818  established 
an  international  servitude  in  favor  of  the  United  States,  exempting  American 
fishermen  from  obedience  to  British  fishing  regulations,  a  contention  which 
was  not  sustained  by  the  Tribunal.  See  the  Proceedings,  Senate  Doc.  870, 
61st  Cong.  3d.  Sess.,  v.  1,  9,  11;  and  the  valuable  compilation  of  extracts  from 
the  writings  of  leading  authorities,  particularly  Clauss,  prepared  by  Dr.  James 
Brown  Scott  in  connection  with  the  arbitration  (Washington,  G.  P.  O.,  1910) 
— Transl.] 

1101.  A  servitude  must  be  regarded  as  a  permanent  relation 
with  respect  to  realty,  that  is,  a  territorial  right  supported  by  the 
servient  state  for  the  advantage  of  the  dominant  state.  As  long 
as  the  title  which  estabhshed  it  subsists  it  passes  with  the  legal 
possession  of  the  territory  to  which  it  is  attached,  so  far  as  con- 
cerns both  the  dominant  and  the  servient  state.  A  servitude,  like 
every  other  exceptional  right  imposed  as  a  limitation  upon  sover- 
eign rights,  must  be  interpreted  restrictively  and  least  prejudicially 
to  the  territorial  rights  which,  by  "common"  law,  belong  to  the 
servient  state. 

1102.  The  servitude  may  become  extinct : 

(a)  By  a  convention  to  the  contrary  or  by  a  denunciation  of  the 
treaty  which  created  it; 

(6)  Through  the  consolidation  of  the  two  territories,  servient 
and  dominant,  under  one  sovereign; 

(c)  By  express  or  tacit  renunciation  on  the  part  of  the  dominant 
state. 


TITLE  IV 
PROPERTY  OF  THE  STATE  AND  TAXATION 


GENERAL    PRINCIPLES 

1103.  Every  state  has  the  exclusive  enjo>Tiieiit  of  the  property 
which,  according  to  constitutional  and  municipal  law.  constitutes 
what  may  be  called  the  fiscal  patrimony  of  the  state,  and  of  all 
the  funds  and  securities  intended  to  constitute  the  pubhc  Treasur\'. 

The  sovereignty  of  the  state,  in  order  to  provide  for  the  administration  of  its 
finances,  concentrates  in  its  hands  an  ensemble  of  funds  and  securities  which  is 
constituted  in  part  by  the  sums  levied  upon  individuals  imder  the  form  of  oblig- 
atory contributions  or  taxes,  in  part  by  certain  lucrative  rights  and  privileges 
which  the  state  exercises  under  the  form  of  profitable  pubUe  services,  viz,  rail- 
roads, posts,  telegraphs,  etc.,  or  fiscal  industries  and  monopoUes.  The  state 
also  derives  funds  from  deductions  made  from  the  income  of  individuals  under 
the  form  of  progressive  income  taxes,  inheritance  ta.xes,  etc.  The  sum  total  of 
all  the  sources  of  income  designed  to  satisfy  the  needs  of  the  state  constitutes 
the  pubUc  treasury  and  is  the  object  of  its  fiscal  administration. 

1104.  The  «)vereign  power  of  each  state  should  exercise  its 
patrimonial  and  fiscal  rights  in  order  to  meet  the  requirements 
of  the  pubhc  treasury'  in  such  manner  as  not  to  injure  the  general 
interests  of  the  Magna  cintas,  and  without  violating  the  principles 
common  to  the  life  of  all  nations  and  peoples. 

In  principle,  a  state  is  unquestionably  free  to  provide  as  it  wishes  the  best 
method  of  enjoying  its  rights;  nevertheless,  as  the  exercise  of  the  sovereign 
rights  of  the  state  must  be  brought  into  harmony  with  the  general  interests 
of  the  Magna  civitas,  so  it  must  be  with  respect  to  the  rights  relating  to  the 
fiscal  patrimony,  contributions  and  taxes,  which,  under  some  form,  are  de- 
signed to  satisfy  the  needs  of  the  treasury*.  Even  in  these  matters  the  inde- 
pendent autonomy  of  the  state  must  submit  to  certain  just  limitations  im- 
posed by  the  necessities  of  the  common  life  of  the  society  of  states. 

1105.  International  law  must  estabhsh  general  rules  governing 
the  exercise  of  the  fiscal  and  property  rights  of  every  state,  so  as 
to  bring  them  into  "harmony  with  the  exigencies  of  the  society  of 
states.    This  should  be  the  case  with  respect 

(a)  To  the  system  of  taxation  and  especially  the  customs  s>-s- 
tem: 

436 


PROPERTY    OF    THE    STATE    AND    TAXATION  437 

(b)  To  the  operation  of  railroads  and  railroad  transportation; 

(c)  To  the  postal  and  telegraph  service; 

(d)  To  the  means  of  communication. 

TAXATION 

1106.  Taxes  constitute  a  part  of  the  property  of  the  state.  They 
consist  in  the  ensemble  of  obligatory  contributions  which  the  state 
is  authorized  to  lev}'  upon  individuals  in  order  to  provide  for  the 
necessities  of  the  state. 

1107.  The  right  of  resorting  to  taxation  in  order  to  meet  the 
financial  requirements  of  the  state  may  be  freely  exercised  by 
ever}-  government  in  confoiTnity  with  its  public  law  and  cannot  be 
considered  as  limited  with  respect  to. foreigners,  except  by  virtue 
of  provisions  of  treaties  in  force  and  by  the  rules  of  international 
law  which  limit  the  autonomy  of  every  state  in  this  respect. 

It  could  not  be  considered  in  conformity  with  the  principles  of  international 
law  to  submit  aliens  to  a  direct  form  of  obhgatory  contribution,  in  exchange 
for  their  enjoyment  of  rights  which  have  been  called  the  international  rights 
of  mankind,  mentioned  in  Title  XXIII,  Book  I.  Compare  also  rules  255  and 
256.  In  modern  legislation  the  various  forms  of  exorbitant  taxes  imposed 
upon  aliens  and  designated  under  the  general  name  of  droit  d'auhaine  have 
been  aboUshed. 

1108.  It  may  be  considered  in  harmony  with  the  principles  of 
international  law,  equity  and  justice  to  subject  to  the  payment  of 
taxes  merely  such  aliens  as  are  permanently  established  in  the 
state,  and  not  to  expand,  bj'  other  imposts,  the  system  of  taxation. 

Aliens  must  be  permitted  to  engage  in  trade  and  commerce,  to 
acquire  property,  to  sue  and  be  sued,  and  to  obtain  the  protection 
and  security  of  their  persons  and  property,  without  subjection  to 
continual  extortion.  They  must  only  bear  certain  special  reason- 
able taxes,  which  may  be  considered  as  the  equivalent  for  the  local 
protection  which  is  assured  them  and  for  the  pubhc  service  which 
they  receive  from  the  state. 

CUSTOMS   SYSTEM 

1109.  Every  state  may.  through  its  customs  system,  freely 
regulate  imports  and  exports  in  accordance  with  the  principles 
which  it  deems  most  desirable  for  the  promotion  of  trade  and 


438  INTERNATIONAL    LAW    CODlFlED 

commerce  or  protective  restrictions.  It  may  also,  by  means  of 
treaties,  reduce  or  modify  its  customs  tariff  in  favor  of  one  or  more 
states. 

1110.  A  state  which,  by  treaty,  grants  favors  to  the  citizens  of 
one  state  but  refuses  them  to  citizens  of  another  state  or  which, 
in  the  absence  of  treaties,  apphes  the  rule  of  reciprocity  does  not 
violate  international  law  by  thus  estabhshing  an  inequality  of 
treatment. 

1111.  States  must  recognize  the  reciprocal  advantage  of  ex- 
tending customs  unions  in  order  better  to  assure  the  development 
of  trade  and  industry,  to  encourage  the  international  diffusion  of 
labor  through  free  exchanges  and  to  facilitate  international  com- 
petition and  production. 

Customs  unions  may  be  useful  for  states  which  have  homogeneous  interests 
and  which  find  themselves  in  analagous  conditions  with  respect  to  means  of 
production,  circulation,  and  exchange.  One  of  the  most  important  and  pros- 
perous customs  unions  was  that  between  the  states  of  Germany  which  com- 
menced with  the  treaty  concluded  by  the  governments  of  Bavaria  and  Wurt- 
emberg  in  1827,  under  the  name  of  the  Bavarian  League  (for  the  history  of 
the  formation  and  development  of  the  German  Customs  Union  called  Zoll- 
verein,  see  Calvo,  Droit  international,  v.  I,  §§  79,  80). 

A  project  of  an  American  ZoUverein  proposed  by  the  United  States  at  the 
international  conference  assembled  at  Washington  in  1890  was  not  accepted 
by  all  the  states;  it  met  with  a  great  deal  of  opposition  especially  on  the  part  of 
the  Argentine  Republic  (see  Calvo,  op.  cit.,  v.  VI,  Supplement  General,  §  348). 

Some  authorities  maintain  the  utility  of  an  European  customs  union  to 
counterbalance  the  competition  of  America  with  Europe  and  which  Asia  will 
soon  offer.  See  in  this  connection  Molinari's  article  in  Journal  des  Econo- 
misles,  1888. 

A  very  useful  institution  created  in  the  interest  of  international  commerce 
is  that  created  on  the  initiative  of  Belgium,  consisting  in  the  establishment, 
through  an  international  agreement,  of  a  bureau  located  at  Brussels  for  the 
publication  of  the  customs  tariffs  of  all  the  signatory  states.  At  the  confer- 
ence held  for  that  purpose  March  15-21,  1888,  there  were  represented  twenty- 
five  states.  Following  the  conference  of  July  5,  1890,  the  convention  for  the 
creation  of  an  international  union  was  signed  by  thirty-four  states  and  the 
international  bureau  established  at  Brussels  April  2,  1891.  It  is  operated  under 
the  supervision  of  the  Minister  for  Foreign  Affairs  of  Belgium. 

1112.  The  customs  system  can  have  the  character  of  a  perfect 
customs  union  only  between  the  signatory  states.  Hence,  in  order 
to  constitute  a  perfect  union,  it  will  be  necessary  to  abolish  the 
customs  boundaries  between  the  contracting  states,  to  institute  a 
single  customs  frontier  separating  the  union  from  the  non-signatory 
states,  to  promulgate  uniform  legislation  and  a  common  customs 


PROPERTY    OF   THE    STATE    AND    TAXATION  439 

tariff  and  create  a  single  customs  administration.  All  these  may 
be  advantageously  established  by  a  treaty  among  states  having 
common  commercial  interests. 

CUSTOMS   SYSTEM    IMPOSED    UPON    A   STATE 

1113.  No  state  may  impose  a  customs  system  upon  a  weaker 
state  by  compelling  it  to  sign  a  treaty  framed  for  its  exclusive 
advantage. 

1114.  A  state  which,  through  the  favorable  issue  of  a  war, 
would  compel  a  weaker  state,  powerless  to  sustain  competition, 
to  adopt  a  customs  system  designed  for  its  exclusive  advantage, 
would  be  guilty  of  a  culpable  abuse  of  power,  which  would  justify 
the  moral  support  of  the  other  governments  in  favor  of  the  weaker 
state  in  order  to  prevent  such  a  disastrous  situation.  If  the  ruinous 
consequences  to  the  defeated  state  were  evident,  they  might  jus- 
tify the  collective  interference  or  interposition  of  the  other  states 
in  order  to  prevent  and  end  such  an  abnormal  condition. 

Compare  rules  557  and  559. 

INTERNATIONAL   RAILROADS 

1115.  States  situated  in  the  same  section  of  a  continent  must 
assign  to  railroad  lines  connecting  contiguous  states  the  character 
of  international  railroads.  They  must  be  deemed  jointly  and 
severally  bound  to  assure  their  regular  operation,  conceding  to 
every  one  the  right  to  use  them  freely  for  commerce  and  inter- 
course. 

1116.  International  railroads  must  be  regarded  as  intended  to 
promote  the  moral  and  economic  development  of  civilized  peoples 
and,  while  safeguarding  the  rights  of  territorial  sovereignty,  must 
be  placed  under  the  protection  of  international  law  in  so  far  as 
concerns  their  peaceful  use,  the  safety  and  regularity  of  operation, 
the  facility  and  economy  of  transportation  and  the  guaranty  of 
private  rights. 

1117.  States  in  the  same  section  of  a  continent  crossed  by  con- 
necting railroads  must  agree  upon  the  adoption  of  international 
regulations,  subjecting  to  common  rules  the  operation  of  and 
transportation  on  these  international  railroads. 


440  INTERNATIONAL    LAW    CODIFIED 


INTERNATIONAL   RAILROAD    REGULATIONS 

1118.  International  railroad  regulations  must  provide,  for  the 
transportation  of  passengers  and  merchandise,  for  the  uniformity 
of  tariffs  and  rates,  for  the  responsibility  of  the  railroad  manage- 
ment in  all  cases  of  delays,  damages,  losses  or  analogous  matters, 
for  the  construction  of  the  necessary  buildings  on  the  frontier 
zones  of  contiguous  states,  so  as  to  facilitate  the  service  and  im- 
prove the  traffic,  and  for  the  apportionment  of  the  expenses  in- 
curred in  these  operations,  without  any  discrimination  between 
nationals  of  the  states  crossed  and  foreigners. 

1119.  The  international  railroad  regulations  adopted  by  states 
through  a  treaty  must  be  regarded  as  obligatory  even  upon  private 
companies  wliich  have  constructed  lines  at  their  own  expense  or 
which  have  a  monopoly  of  operation.  Every  state  is  bound  to 
compel  these  companies  to  observe  the  regulations,  subject  to  its 
responsibility  for  all  the  consequences  of  their  non-observance  by 
the  companies,  if  it  failed  to  adopt  effective  means  to  compel  them 
to  comply  with  and  fulfill  the  obligations  assumed  by  the  state 
under  the  terms  of  the  international  convention. 

1120.  The  international  railroad  regulations  must  be  deemed, 
so  far  as  their  execution  is  concerned,  under  the  legal  protection 
of  the  states  connected  by  the  railroad  and  signatory  to  the  treaty, 
and  any  question  which  might  arise  among  these  states  with  ref- 
erence to  the  execution  of  the  treaty  should  be  referred  to  an  arbi- 
tral tribunal. 

A  convention  for  the  transportation  of  freight  by  railroad  was  concluded  at 
Berne,  October  4,  1890,  between  Germany,  Austria-Hungary,  Belgium,  France, 
Italy,  the  Netherlands,  Russia  and  Switzerland  by  which  "common"  legal 
rules  were  established  among  the  signatory  states,  regulating  the  contract  of 
international  railroad  transportation  and  also  determining  the  responsibility 
of  the  management  and  the  rules  governing  actions  for  damages.  [A  standard 
authority  on  the  Berne  convention  and  on  international  railroad  transporta- 
tion in  general  is  the  late  Georg  Eger,  who  wrote  numerous,  works  on  the 
subject — Transl.] 


TRANSPORTATION    OF   FREIGHT   BY   INTERNATIONAL   RAILROADS 

1121.  In  the  absence  of  a  special  treaty  governing  international 
railroad  transportation  the  principles  of  "common"  law  relating 


PROPERTY   OF   THE    STATE    AND   TAXATION  441 

to  the  contract  of  transportation  will  be  applied  to  the  carriage  of 
freight  on  an  international  railway,  from  the  point  of  shipment  to 
the  point  of  destination  or  delivery  of  the  goods. 

1122.  Actions  at  law  against  railroad  managements,  arising  out 
of  the  contract  of  transportation,  subject  to  the  conditions  re- 
quired for  their  legal  institution,  may  be  brought  against  any  one 
of  the  constituent  roads  of  an  international  railroad  which  has 
participated  in  the  international  carriage  of  the  freight. 

1123.  A  railroad  which  has  by  bill  of  lading  accepted  freight  for 
transportation  is  responsible  for  the  fulfillment  of  the  transporta- 
tion on  all  connecting  lines  to  the  point  of  destination.  Every 
successive  connecting  railroad,  bj-  the  very  fact  of  shipping  the 
freight  on  the  original  bill  of  lading  becomes  a  party  to  the  con- 
tract of  transportation  and  is  obliged  to  execute  it  to  the  point  of 
destination. 

1124.  The  managements  of  the  various  railroads  which  have 
successively  taken  up  the  carriage  of  the  goods  confided  to  them 
on  the  original  bill  of  lading,  will  be  considered  as  parties  to  the 
original  contract  of  transportation  and  bound  to  execute  it  in  con- 
formity with  such  bill,  and  will  l)e  held  responsible  for  its  execution. 

1125.  The  right  of  legal  recourse  against  railroad  managements 
resides,  by  reason  of  the  contract  of  international  transportation, 
in  the  shipper  or  consignee  of  the  goods,  and  may  be  brought  either 
against  the  carrier  who  received  the  goods  and  issued  the  original 
bill  of  lading,  or  against  each  connecting  carrier  which  successively 
participated  in  the  international  transportation,  or  against  the 
carrier  on  whose  line  the  loss  or  damage  occurred,  subject,  however, 
to  the  right  of  subrogation,  which  is  always  reserved  to  the  partici- 
pating carrier.  In  either  case  the  action  can  be  brought  only  in  a 
competent  court  in  accordance  with  the  rules  of  "common"  law. 

1126.  A  connecting  carrier  which  has  participated  in  a  contract 
of  international  transportation  is  responsible  for  the  loss,  total  or 
partial,  or  damage  to  merchandise  from  the  station  or  point  where 
it  undertook  the  carriage  to  the  point  where  it  made  delivery  to  the 
next  connecting  can-ier.  Each  public  carrier  is  relieved  of  its  re- 
sponsibiUty  by  proving  that  the  damage  resulted  from  the  act  of 
the  claimant  himself,  either  the  shipper  or  the  consignee,  who  had 
modified  in  transit  the  conditions  of  tlie  bill  of  lading,  or  l)y  prov- 
ing that  the  damage  arose  through  an  inherent  defect  in  the  goods 


442  INTERNATIONAL   LAW    CODIFIED 

(natural  deterioration  or  spoiling) ,  or  from  a  natural  fact  (congeal- 
ing or  leakage  of  a  liquid)  or  through  an  Act  of  God  or  force  ma- 
jeure. 

1127.  When  the  bill  of  lading  mentions  a  place  of  destination 
which  is  not  a  railroad  station  the  contract  of  international  trans- 
portation must  1)6  considered  as  perfect  and  executed  upon  the 
arrival  of  the  goods  at  the  last  station  of  the  railroad.  In  so  far 
as  concerns  the  ultimate  carriage  of  the  goods  to  a  consignee  not 
located  at  the  place  of  the  last  station  of  the  railroad,  it  is  proper 
to  apply  the  railroad  regulations  in  force  at  the  place  where  the 
station  is  located  in  all  matters  relating  to  the  delivery  of  the  goods 
and  the  responsibility  of  the  final  carrier. 

The  above  rules  are  based  upon  the  principles  of  "common"  law  relating 
to  railroad  transportation.  The  contract  must  be  considered  as  concluded  by 
the  mere  fact  of  the  acceptance  of  the  goods  at  the  point  of  shipment  for  their 
transportation  to  the  place  indicated  in  the  bill  of  lading. 

The  station  master  at  the  point  of  shipment,  who  has  certified  the  acceptance 
of  the  merchandise  by  delivering  a  duly  signed  and  sealed  bill  of  lading,  indi- 
cating the  date  of  acceptance  of  the  goods,  has  thus  undertaken  the  contract 
of  transportation  and  the  obligation  of  executing  it  for  himself  and  for  the 
connecting  carriers,  by  ordinary  means;  consequently,  the  shipment  must 
remain  subject  to  the  rules  of  "common"  law  which  govern  contractual  re- 
lations. The  same  rule  applies  to  the  station  master  of  successive  lines  who 
receives  the  merchandise  with  the  bill  of  lading  or  way  bill  and  duly  receipts 
therefor.  He  thus  establishes  the  acceptance  of  the  goods  and  assumes  the 
obligation  to  continue  the  transportation.  He  consequently  participates  in  the 
execution  of  the  contract,  becoming  responsible  for  any  damage  arising  through 
non-execution  or  defective  execution,  upon  the  condition,  of  course,  that  the 
carrier  which  assumes  the  transportation,  either  the  first  carrier  or  a  connecting 
carrier,  and  continues  it,  also  assumes  the  position  of  a  common  carrier.  Hence 
it  must  be  admitted  that  the  railroad  is  subject  to  all  the  obligations  imposed 
upon  a  carrier  of  goods,  and  is  responsible  even  for  its  employees  and  any 
other  persons  to  whom  it  entrusts  the  obligation  of  executing  the  contract  of 
transportation. 

1128.  The  regulations  of  different  individual  carriers,  denying 
or  limiting  their  responsibility  and  obligations  contrary  to  the 
principles  of  "common"  law  relating  to  the  contract  of  transporta- 
tion, cannot  be  regarded  as  valid  so  far  as  concerns  the  interna- 
tional railroad  transportation.  In  the  absence  of  positive  rules 
established  by  treaty,  the  transportation  must  be  governed  by  the 
principles  of  international  "common"  law  and  not  by  the  regula- 
tions of  the  various  carriers  in  derogation  of  those  principles. 

This  rule  rests  upon  the  principle  that  international  transportation  has,  by 
the  nature  of  things,  the  true  character  of  an  international  contract.    The 


PROPERTY    OF   THE    STATE    AND   TAXATION  443 

question  may  arise  according  to  the  law  of  each  country,  whether  railroad 
companies  may,  b}'  their  reguhitions,  reject  or  hmit  their  Habihty  contrary  to 
the  principles  established  by  the  municipal  law  which  governs  in  matters  re- 
lating to  railroad  transportation.  The  legislation  of  certain  governments 
excludes  this  possibihty  absolutely.  This  is  the  rule  in  Italy  which,  in  the  new 
Commercial  Code,  regulates  by  special  articles  the  contract  of  railroad  trans- 
portation and  has  fixed  the  responsibility  of  railroad  carriers  and  removed 
every  doubt  upon  the  validity  of  railroad  regulations  by  the  following  provi- 
sions of  Article  416: 

"Stipulations  rejecting  or  limiting  the  obligations  and  responsibilities  enu- 
merated in  articles  392,  393,  394,  400,  402,  404,  405,  407,  408,  411  and  415  are 
null  and  void,  even  if  thej'  are  permissible  under  general  or  special  regulations, 
save  when  the  limitation  of  responsibility  is  accompanied  by  a  reduction  of  the 
freight  rate  established  in  the  ordinary  tariffs,  set  forth  in  special  tariflfs." 

Supposing  that  this  provision  is  not  incorporated  into  the  legislation  of  a 
foreign  country  and  that  the  local  carrier  has,  by  its  regulations,  denied  its 
"common"  law  responsibility  for  the  execution  of  the  contract  of  transporta- 
tion; in  our  opinion  the  regulation  would  not  be  valid  to  limit  its  responsibility 
for  the  international  transportation.  In  fact,  since  the  contract,  by  its  very  ob- 
ject and  nature,  has  the  inherent  character  of  an  international  contract,  the 
question  of  the  responsibility  of  the  carrier  who  has  undertaken  to  execute 
the  contract,  must  be  resolved  according  to  the  principles  of  international 
"common"  law,  and  not  according  to  the  regulations  which,  at  the  utmost, 
may  be  applied  to  contracts  made  and  executed  wholly  within  the  territory 
of  the  state.  To  remove  every  uncertainty  it  is  eminently  desirable  that  the 
states  establish  a  uniform  law  in  the  matter  of  international  transportation. 
Nevertheless,  we  repeat  that  in  the  absence  of  any  international  convention, 
justice  requires  that  difficulties  and  controversies  be  settled  according  to  the 
principles  of  "common"  law. 


INTERNATIONAL   TELEGRAPH   LINES 

1129.  It  is  incumbent  on  every  state  to  consider  telegraph  lines 
which  connect  contiguous  states  as  intended  to  maintain  relations 
of  international  intercourse  and  commerce,  and  a  state  must  exer- 
cise its  own  rights  over  them  in  such  manner  as  not  to  impair  the 
general  interests. 

The  peaceful  use  of  international  telegraph  lines  must  be  under 
the  protection  of  international  law. 

1130.  Save  for  the  right  of  every  state  to  defend  its  rights  of 
sovereignty  over  telegraph  lines  within  its  territory,  to  protect 
its  interests  and  to  prevent  the  lines  from  being  employed  in  a 
manner  prejudicial  to  public  security  and  order,  no  state  may  so 
exercise  its  own  rights  as  to  violate  the  right  of  all  persons,  without 
distinction,  to  use  international  lines  for  telegraphic  communica- 
tion. 


444  INTERNATIONAL   LAW    CODIFIED 

1131.  It  is  incumbent  upon  all  states  to  enact  uniform  legisla- 
tion governing  the  use  of  telegraph  lines.  On  its  part,  every  state 
must  bring  its  municipal  laws  into  harmony  with  the  rules  adopted 
in  common  accord,  and  will  be  responsible  for  its  failure  to  do  so. 

1132.  The  regulations  for  the  operation  of  international  tele- 
graph lines  must  fix  the  tariffs,  the  supervision,  the  priority  of 
official  dispatches,  establish  and  keep  the  lines  in  repair  and  pre- 
scribe the  proper  measures  to  prevent  their  destruction  or  deterio- 
ration. 

In  the  absence  of  such  regulations  the  rules  of  "common"  law 
and  those  stipulated  in  treaties  must  be  observed. 

International  telegraph  service  was  regulated  by  the  treaty  concluded  at 
St.  Petersburg  July  10/22,  1875,  under  which  a  union  was  formed  by  numerous 
states.    See  the  regulations  of  July  22,  1896,  and  July  10,  1903. 


OPERATION   OF   INTERNATIONAL   TELEGRAPH   LINES 

1133.  No  telegraph  lines  may  be  established  or  extended  in  or 
over  the  territory  of  a  state  without  the  previous  consent  of  the 
state.  Except  for  the  right  to  lay  submarine  cables  in  the  high  seas, 
therefore,  it  is  unlawful  to  prolong  the  lines  and  extend  them  into 
the  territorial  waters  of  a  state  without  the  consent  of  the  state. 

1134.  The  right  of  every  state  to  grant  or  to  deny  authorization 
to  prolong  a  telegraph  line  is  inherent  in  its  right  of  autonomy  and 
independence,  even  when  such  extension  is  necessary  to  connect 
two  international  lines.  Nevertheless,  the  unjustified  refusal  of  a 
state  to  permit  the  extension  of  hnes  might  be  deemed  arbitrary 
and  might  justify  indirect  measures  of  constraint  and  reprisal, 
provided  good  offices  have  failed  to  obtain  the  desired  authoriza- 
tion. 

1135.  When  an  international  telegraph  line  is  in  actual  opera-' 
tion,  no  government  may  suspend  the  use  of  that  portion  of  the 
line  on  its  territory  without  proper  official  notice. 

1136.  The  right  of  a  state  to  suspend  the  use  of  international 
telegraph  lines  on  its  territory  for  certain  classes  of  messages  or 
for  all  messages,  by  giving  public  notice,  may  in  all  cases  be  recog- 
nized only  for  dispatches  originating  in  or  destined  for  its  terri- 
tory, but  cannot  extend  to  dispatches  in  transit  or  those  addressed 
in  time  of  peace  from  one  state  to  another  state. 


PROPERTY    OF   THE    STATE    AND   TAXATION  445 

VIOLATION   OF   DISPATCHES   IN   TRANSIT 

1137.  Everj'  government  should,  b}"  its  criminal  law,  punish 
any  interference  with  international  dispatches  in  transit  as  it  does 
those  transmitted  within  the  state. 

1138.  Every  government  must  also  take  administrative  meas- 
ures, in  the  absence  of  criminal  proceedings,  to  prevent  any  arbi- 
trary or  unlawful  interference  of  private  persons  in  the  regular 
operation  of  international  telegraph  lines,  and  to  provide  that 
persons  responsible  for  any  imnecessary  delay  in  the  transmission 
of  messages,  resulting  in  damage,  shall  be  held  personally  hable. 

SUBMARINE    CABLES 

1139.  That  portion  of  submarine  cables  which  is  outside  the 
territorial  waters  of  a  state  must  be  deemed  under  the  protection 
of  international  law,  so  far  as  the  establishment  and  preservation 
of  cables  are  concerned. 

1140.  To  cut  or  to  injure  a  submarine  cable,  intentionally  or 
through  culpable  neglect,  the  result  of  which  may  be  partly,  or 
completely,  to  interrupt  telegraphic  communication,  is  to  be 
deemed  a  violation  of  international  law,  and  should  be  punished 
when  it  bears  the  character  of  a  criminal  act,  without  prejudice  to 
a  civil  action  for  damages. 

1141.  Every  state  must  recognize  that  for  the  protection  of  the 
general  interests,  it  is  necessary  to  confer  on  the  war  vessels  of  all 
countries  the  right  to  repress  and  prevent  the  cutting  or  injury  of 
submarine  cables  on  the  high  seas  and  to  arrest  offending  or  sus- 
pected individuals,  in  order  to  l)ring  them  to  trial  before  a  compe- 
tent court  according  to  the  general  rules  of  criminal  jurisdiction  of 
offenses  committed  on  the  high  seas. 

1142.  The  states  signatoiy  to  the  convention  for  the  protection 
of  submarine  cables,  concluded  at  Paris,  March  14,  1884,  are 
bound  to  comply  with  its  provisions,  the  observance  of  which  must 
be  considered  under  the  collective  guaranty  of  all  the  signatory  or 
adhering  powers. 

The  convention  of  March  14,  1884,  was  orif^iiially  siKnod  by  the  following!; 
states:  Au.stria-IIiinp;ary,  ArKcntino  R<>puhlic,  Bclfrium,  Brazil,  Colombia, 
Costa  Rica,  Denmark,  France,  (Jennaiiy,  Croat  Britain,  Creece,  Guatemala, 


446  INTERNATIONAL   LAW    CODIFIED 

Italy,  Netherlands,  Persia,  Peru,  Portugal,  Roumania,  Russia,  San  Salvador, 
Santo  Domingo,  Spain,  Sweden  and  Norway,  Servia,  Turkey,  United  States 
and  Uruguay. 


INTERNATIONAL  POSTAL  SERVICE 

1143.  Every  state  is  bound  to  facilitate  the  development  of 
postal  communication  and  so  to  exercise  its  sovereign  rights  over 
this  service  as  not  to  interfere  with  the  free  right  of  international 
correspondence,  which  must  be  protected  and  encouraged. 

1144.  No  state,  under  its  rights  of  territorial  sovereignty,  may 
be  deemed  authorized  to  interfere  with  postal  intercourse  or  to 
violate  the  secrecy  of  correspondence,  even  upon  a  well  founded 
ground  of  political  or  administrative  interest.  It  may  be  admitted, 
however,  that  for  very  serious  reasons  connected  with  pubhc 
security,  a  government  may  suspend  the  sending  or  delivery  of 
newspapers,  giving  notice  of  such  a  measure  through  all  possible 
means  of  publicity. 

1145.  The  postal  service  between  states,  so  far  as  concerns  its 
free  exercise  and  the  observance  of  the  two  preceding  rules,  must 
be  deemed  under  the  protection  of  the  civiUzed  states  of  the 
world. 

1146.  The  states  which  subscribed  the  Postal  Union  Convention 
of  June  1,  1878,  the  additional  act  of  March  21,  1885,  and  the 
subsequent  regulations  relating  to  that  convention,  and  the  other 
states  which  subsequently  adhered  thereto,  must  faithfully  carry 
out  their  agreements,  subject  to  reservations  made  by  any  state 
at  the  time  of  signature  or  adherence  to  the  original  treaty. 

The  international  postal  union  has  the  true  character  of  a  universal  union 
of  all  civilized  states,  which  have  agreed  to  regulate  the  important  public 
service  of  international  correspondence  in  the  best  and  most  economical  man- 
ner. Besides  the  ordinary  postal  service  the  agreement  referred  to  the  ex- 
change of  registered  letters  with  a  declared  value,  postal  orders  and  parcel 
post,  and  to  the  service  of  collecting  letters  and  bills  of  exchange  (see  the 
treaty  of  March  21,  1885). 

TELEPHONES 

1147.  International  correspondence  by  telephone  and  public 
operation  of  the  telephone  service  should  be  governed  by  analogy 
by  the  rules  concerning  telegraphic  correspondence. 


PROPERTY   OF   THE   STATE   AND    TAXATION  447 

MARITIME    POSTAL   SERVICE 

1148.  Correspondence  maintained  by  means  of  mail  steamers 
must  be  protected  in  conformity  with  international  law  by  appli- 
cation of  the  rules  governing  navigation  and  the  landing  of  mail 
steamers. 

Compare  rules  327  el  seq. 

ROADS    AND   HIGHWAYS   OF   COMMUNICATION 

1149.  No  state  may,  without  violating  international  law,  deny 
the  inoffensive  use  of  public  roads  to  foreigners  who  desire  to  use 
them  as  a  means  of  communication  and  transit  for  the  carrying  on 
of  peaceful  commerce. 

Nevertheless,  every  state  has  the  right  to  regulate  the  use  of 
and  transit  on  its  public  roads,  so  as  to  assure  public  order  and  the 
security  and  defense  of  the  state. 

1150.  A  state  which,  without  grave  reasons,  refuses  to  facilitate 
communication  with  foreign  countries,  violates  international  law. 

The  object  of  this  rule  is  to  concede  that  well  founded  international  require- 
ments might  be  the  basis  of  a  sort  of  lawful  servitude  of  transit,  in  the  sense 
that  an  intermediate  state  could  not,  without  committing  an  arbitrary  act, 
interfere  with  the  right  of  travelling  freely  over  the  world,  by  placing  impedi- 
ments in  the  way  of  the  free  development  of  international  activity  and  by  its 
refusal  to  permit  the  transit  necessary  for  international  commerce.  Let  us 
suppose  that,  for  such  purpose,  it  may  be  useful  to  build  a  tunnel,  and  that  a 
state,  without  good  reason,  on  the  one  hand,  refuses  to  contribute  its  share  to 
the  work,  and  on  the  other  hand,  does  not  allow  the  other  interested  states  to 
construct  it  at  their  own  expense;  its  unjustified  opposition  ought  to  be  re- 
garded as  arbitrary  and  ought  to  give  rise  to  collective  remonstrances  and  the 
use  against  it  of  indirect  pacific  means  to  compel  it  to  withdraw  its  opposition. 

PEACEFUL    USE   OF   ISTHMUSES 

1151.  The  right  to  the  inoffensive  use  of  channels  of  communica- 
tion must  include  also  the  use  of  isthmuses,  whether  they  consti- 
tute a  part  of  the  territory  of  a  state  or  belong  in  common  owner- 
ship to  several  states,  and,  saving  the  right  to  regulate  such  use  by 
administrative  and  financial  laws,  the  restriction  of  the  use  of 
isthmuses  to  citizens  or  rendering  their  use  by  foreigners  onerous 
and  difficult,  must  always  bo  regarded  as  an  arbitrary  act. 


TITLE  V 
PROPERTY   BELONGING    TO    PRIVATE    INDIVIDUALS 

GENERAL   PRINCIPLES 

1152.  Real  and  personal  property  in  the  state,  although  belong- 
ing to  private  foreigners,  must  l)e  subject  to  the  authority  of  the 
territorial  sovereign  who  has  eminent  domain  over  all  the  territory 
of  the  state  and  over  things  which  must  be  regarded  as  constitut- 
ing part  of  the  territory. 

Compare  rules  246  et  seq.,  291  et  seq. 

1153.  International  law  must  determine  the  just  conditions  to 
which  foreigners  must  be  subjected  in  the  exercise  and  enjoyment 
of  their  rights  within  a  state,  so  as  to  co-ordinate  the  free  enjoyment 
of  those  rights  with  the  interests  of  the  territorial  state  and  of  its 
inhabitants. 

1154.  All  the  laws  of  the  state  relating  to  things,  considered 
by  themselves  and  independently  of  the  persons  to  whom  they 
belong,  must  have  an  absolute  authority  ergo  077ines.  The  same 
rule  apphes  to  the  laws  governing  the  exercise  of  rights  over  mova- 
ble and  immovable  property  designed  to  safeguard  the  id  quod  ad 
universitatis  utilitatem  spedat,  and  which  constitute  the  social  and 
public  law  of  the  state. 

1155.  The  laws  which  govern  the  rights  of  private  persons  over 
property,  with  a  view  to  regulating  the  id  quod  ad  singulorum 
utilitatem  spectat  must,  in  principle,  exercise  their  authority  only 
upon  persons  over  whom  the  legislature  has  authority. 

1156.  No  state  may,  without  violating  the  principles  of  "com- 
mon" law,  subject  to  its  laws  all  the  personal  rights  of  foreigners 
over  movable  and  immovable  property  in  its  territory  nor  de- 
termine the  extent  of  such  rights.  On  the  contrary,  the  state  must 
recognize,  in  principle,  the  authority  of  foreign  laws  which,  accord- 
ing to  the  principles  of  "common"  law,  are  designed  to  determine 
and  govern  a  foreigner's  rights  over  property  wherever  it  may  be, 

448 


I 


PROPERTY    BELONGING  TO    PRIVATE   INDIVIDUALS  449 

on  condition  that  their  exercise  and  enjoyment  by  the  owner  shall 
not  involve  a  breach  of  the  municipal  pubhc  law  or  public  policy 
governing  property. 

1157.  Legislative  jurisdiction  to  determine  personal  rights  over 
property  derived  from  family  relations,  succession  or  any  other 
title,  cannot  be  attributed  to  the  sovereignty  of  the  state  in  which 
the  property  is  located,  but  must  be  established  according  to  the 
rules  of  private  international  law. 

Exclusive  legislative  jurisdiction  of  the  territorial  sovereign 
must  be  recognized  only  in  the  cases  which  come  within  rule  1153. 

The  rules  proposed  are  based  upon  the  principles  which  we  enunciated  in  our 
younger  days,  in  the  first  volume  of  the  science  which  for  43  j^ears  has  been 
the  object  of  our  study.  This  is,  in  effect,  what  we  \^Tote  in  1865,  in  chapter 
VIII,  p.  133,  of  our  Nuovo  DiritLo  internazionale  pubblico: 

"We  cannot  speak  of  the  pubhc  law  of  a  state  in  the  same  light  as  we 
have  spoken  of  its  private  law.  The  public  law  has  as  its  object  the  mainte- 
nance of  the  social  organization,  and  to  that  end  the  persons  and  things  within 
the  national  territory  must  be  subject  to  the  principles  of  the  public  law  of  the 
territorial  state.  The  right  of  every  state  to  regulate  the  private  life  of  its 
subjects  may  be  exercised  in  foreign  countries  so  long  as  the  use  thereof  is 
inoffensive,  that  is  to  say,  so  long  as  it  is  not  derogatory  to  the  principles  of 
public  law  of  the  foreign  state. 

"It  follows  from  what  we  have  just  said,  that  the  status  and  capacity  of 
persons,  wherever  their  rights  may  be  exercised,  the  legal  status  of  the  family, 
the  rights  and  duties  of  the  individuals  who  compose  it  and  the  effects  of  such 
rights  and  duties  upon  the  property  of  the  family  and  its  members  in  different 
parts  of  the  world,  the  obligations  arising  out  of  contracts  relating  to  property 
and  other  analogous  matters,  must  be  governed  by  the  national  law,  and  the 
citizen  in  his  legal  and  international  relations  may  rightfully  invoke  in  the 
territory  of  every  state  the  application  of  the  law  which  governs  his  status 
and  that  of  his  family,  even  in  relation  to  property  wherever  situated,  as  well 
as  the  law  which  has  first  governed  the  agreements  and  relations  entered  into 
by  him,  provided  that  the  application  of  the  law  in  the  territory  of  a  foreign 
state  is  not  prejudicial  to  its  political  and  economic  interests,  nor  contrary  to 
the  principles  which  the  legislature  has  fixed  as  laws  of  public  policy. 

See  the  French  translation  by  Pradicr-Fodere,  Paris,  1868,  v.  I,  pp.  297,  298. 

We  have  set  forth  these  principles  at  some  length  in  our  Dirilto  interna- 
zionale privalo,  Florence,  1869,  and  at  greater  length  in  the  4th  edition,  Turin 
and  Paris,  1902.  Most  present  day  writers  have  developed  the  same  theory, 
especially  Laurent  in  his  important  work  Droit  civil  international,  published 
in    1880. 

1158.  Civilized  states  should  establish  by  treaty  uniform  rules 
concerning  the  legislative  jurisdiction  of  the  territorial  state  and 
of  the  foreign  state  in  regard  to  the  exercise  and  enjoj^nent  of 
rights  over  property  situated  within  their  respective  territories,  in 
ordor  to  determine  tho  authoritv  of  jho  territorial  law  or  of  the 


450  INTERNATIONAL  LAW  CODIFIED 

foreign  law  which  must  govern  all  relations  with  respect  to  prop- 
erty.   This  would  avoid  the  conflict  of  laws. 

Considering  that,  in  principle,  a  state  cannot  claim  the  right  of  subjecting 
to  its  laws  all  legal  relations  concerning  property  in  its  territory,  and  that  it  is 
only  entitled  to  this  right  when  it  involves  safeguarding  the  political  and  eco- 
nomic interests  of  the  state  and  its  inhabitants  it  can  readily  be  seen  that  un- 
less the  legal  limits  of  the  legislative  jurisdiction  of  the  territorial  sovereignty 
are  fixed  conflicts  involving  the  legislative  jurisdiction  of  each  state,  which 
only  a  treaty  on  the  subject  can  avoid,  are  inevitable. 


REASONABLE   RULES   CONCERNING   THE   LEGISLATIVE   JURISDICTION 

OF  STATES 

1159.  In  the  absence  of  a  treaty  on  the  subject,  the  legislature 
of  each  state  may  estabUsh  rules  binding  on  the  courts  of  the 
country.  FaUing  such  rules  the  courts  must,  in  determining  the 
law  appUcable,  rely  upon  the  general  principles  of  private  inter- 
national law  as  in  all  cases  where  there  exists  no  rule  of  positive 
law. 

Undoubtedly  the  legislature  of  each  state  has  not  the  power  to  proclaim 
rules  of  private  international  law.  Nevertheless,  it  may  furnish  the  courts 
with  rules  to  determine  which  laws  are  to  be  appUed  in  deciding  cases 
submitted  to  them.  Such  rules,  which  are  not  obhgatory  upon  foreign  courts, 
are  binding  upon  the  judges  of  the  territorial  state. 

The  Italian  legislature  has  thus  sanctioned  in  articles  7,  8,  9, 10  and  12  of  the 
general  provisions  of  the  Civil  Code,  the  rules  regarding  the  authority  of  the 
Italian  law  when  in  conflict  with  the  law  of  other  states.  The  German  legis- 
lature has  done  the  same  in  the  introductory  law  to  the  Civil  Code  of  Au- 
gust 7th,  1896. 

The  rules  provided  for  by  each  legislature  are  binding  upon  the  judges  of 
the  territorial  state,  and  their  violation  or  misapplication  may  give  rise  to  an 
appeal  to  the  higher  courts,  as  in  the  case  of  the  violation  of  a  territorial  law. 
Compare  Fiore:  Delle  disposizioni  generali  sulla  pubblicazione,  applicazione  e 
interpretazione  delle  leggi,  Naples,  Marghieri,  2d  ed.,  v.  2,  p.  640,  no.  449,  and 
Trattato  di  diritto  intemazionale  privato,  4th  ed.,  Leggi  citnli,  v.  I,  p.  265,  No.  273. 
See  also,  Demangeat,  Introduction  to  Journal  du  droit  international  prive,  v. 
I,  1874. 

1160.  Legislative  jurisdiction  as  regards  personal  rights  over 
property  should  be  ascribed  to  the  state  which,  as  against  others, 
has  the  power  to  regulate  the  title  upon  which  the  owner  bases 
his  right. 

1161.  Legislative  jurisdiction  concerning  property  situated  in 
the  territory  of  the  state,  considered  objectively,  must  be  ascribed 
exclusively  to  the  territorial  sovereignty. 


PROPERTY   BELONGING   TO   PRIVATE   INDIVIDUALS  451 

This  sovereignty  has  not  only  the  power  to  determine  the  legal 
status  of  property,  but  has  also  the  power  to  fix  the  conditions 
necessary  for  the  validity  of  rights  in  rem  and  to  determine  the 
legal  recourse  which  the  owner  may  have  as  to  his  own  property  or 
that  of  others  situated  within  the  national  territory. 

Compare  rules  291  et  seq. 

1162.  No  right  belonging  to  one  person  as  against  other  persons 
with  respect  to  property  in  a  given  state  (jus  ad  rem)  may  legally 
subsist  and  be  effectively  exercised  as  a  real  right  (jus  in  re)  with 
power  of  bringing  a  real  action  (actio)  except  in  conformity  with 
the  territorial  law,  which  has  exclusive  jurisdiction  of  the  matter. 

The  actio,  as  a  form  of  legal  protection  of  a  real  right  (jus  in  re)  implies  the 
power  to  act  directly  upon  the  property,  in  whosesoever  hands  it  may  be,  and 
to  make  use  of  the  coercive  means  allowed  by  the  law  to  claim,  maintain  and 
defend  one's  right  and  to  reject  any  demand  on  the  part  of  others.  It  is  clear 
that  all  this  must  be  regulated  by  the  territorial  law  of  the  state  having  do- 
minion, jurisdiction  and  the  power  of  authorizing  and  sanctioning  the  use  of 
coercive  measures.  Any  form  whatever  of  interference  in  such  matters  on  the 
part  of  a  foreign  sovereignty  would  be  inconsistent  with  the  autonomy  and 
independence  of  a  state.  The  principle  extra  territorium  jus  dicendi  impune 
non  paretur  may  be  appropriately  invoked. 

Compare  rule  293. 

1163.  Legislative  jurisdiction  must  be  recognized  on  the  part 
of  the  territorial  sovereignty  in  the  following  respects : 

(a)  To  exclude  every  real  relation  between  persons  and  things 
on  the  national  territory,  if  that  relation  cannot  subsist  without 
prejudice  to  the  territorial  public  law  or  the  rules  of  public  policy. 

(6)  To  determine  the  principal  conditions  essential  in  order  that 
the  right  over  the  property  may  be  considered  legally  valid  and 
effective; 

(c)  To  fix  the  forms  of  public  notice  or  record  absolutely  essen- 
tial in  order  that  the  right  over  the  property  may  be  deemed  valid 
as  regards  third  parties; 

(d)  To  limit  the  exercise  and  enjoyment  of  rights  over  property 
with  a  view  to  safeguarding  the  pul)Iic  interest  and  the  organiza- 
tion of  landed  property  and  to  assure  the  protection  of  the  rights 
of  property; 

(e)  To  regulate  the  effects  of  possession  and  the  legal  conse- 
quences arising  from  a  state  of  facts  and  relations  established  be- 
tween persons  and  property  within  the  national  territory. 


4'52  INTERNATIONAL  LAW   CODIFIED 

We  canuot  here  develop  the  principles  which  serve  as  the  basis  for  this  rule. 
This  has  been  done  in  our  other  works.  See:  Fiore,  Diritto  inlernazionale 
privato,  and  paper  read  before  the  Royal  Academy  of  Naples  Sulla  limitazione 
dell'  autorild  delli  leggi  straniere;  delerminazione  delle  leggi  di  ordine  pubblico, 
Atti,  V.  XXXVIII. 

We  will  explain  our  views  by  means  of  examples: 

(a)  The  territorial  law  may  prohibit  trusts,  irredeemable  rents,  or  mortmain; 

(b)  The  territorial  law  may  absolutely  require  written  consent  for  the  sale 
of  real  property; 

(c)  The  territorial  law  may  require  the  registration  or  recording  in  a  regis- 
tration office  of  all  transfers  of  property  or  a  specification  of  mortgages,  in 
order  to  give  them  effect  with  respect  to  third  parties; 

(d)  The  territorial  law  may  prohibit  the  leasing  of  immovables  for  more  than 
thirty  years,  sub-emphyteusis,  or  joint  ownership  beyond  a  certain  period  of 
years; 

(e)  The  territorial  law  may  govern  possessory  actions;  forbid  spoliation; 
regulate  the  effects  of  possession  upon  third  parties,  admitting  that  possession 
in  good  faith  is  equivalent  to  title  with  respect  to  third  parties;  or  may  fix  the 
rules  of  acquisitive  prescription. 

1164.  Legislative  jurisdiction  concerning  rights  over  property 
which  constitutes  a  decedent's  estate,  whether  personal  or  real 
(limiting  such  jurisdiction,  however,  to  the  order  of  succession  or  the 
measure  of  distribution)  must  be  ascribed  to  the  state  having 
authority  to  regulate  family  relationship  and  the  rights  of  its 
members,  subject,  however,  to  the  power  of  every  territorial 
sovereignty  to  establish  by  its  own  laws  the  necessary  measures 
to  render  the  succession  effective  and  to  determine  the  cases  in 
which  the  effective  scope  of  this  right  of  succession  must  be  hmited. 

The  principle  inspiring  this  rule  is  sanctioned  by  Italy  in  article  8  of  the 
general  provisions  of  the  Civil  Code,  which  recognizes  the  authority  of  the 
national  law  of  the  deceased  to  regulate  the  order  of  inheritance  and  the  meas- 
ure of  distribution,  whatever  the  nature  of  the  property  and  wherever  situated. 
The  Italian  legislature  has  thus  regulated  the  right  of  succession  considered  as  a 
personal  right  over  the  patrimony  of  the  deceased;  but  the  legislature  could 
not  and  did  not  intend  to  grant  a  real  right  over  the  immovables  of  the  de- 
ceased. On  the  contrary,  in  this  matter,  the  legislature  has  sanctioned  the 
prevailing  authority  of  the  territorial  law,  by  providing,  in  a  general  way 
in  article  7,  that  "immovables  are  governed  by  the  laws  of  the  place  where 
they  are  located."  See  Fiore,  Dirillo  inlernazionale  privato,  v.  Ill,  Book  V, 
Chapters  II,  V,  VI,  and  the  article  published  in  Giurisprudenza  ilaliana,  v. 
LIII,  on  article  8  of  the  general  provisions  of  the  ItaUan  Code,  Turin,  1901. 


INVIOLABILITY   OF   PRIVATE   PROPERTY 

1165.  Every  state  is  bound  to  recognize  that  the  property  of 
private  persons,  whether  citizens  or  foreigners,  is  inviolate.     No 


PROPERTY    BELONGING   TO   PRIVATE    INDIVIDUALS  453 

state  may  deprive  a  foreigner  of  his  property  or  compel  him  to  part 
with  it  against  his  will,  nor  subject  him  to  vexatious  measures  as  a 
condition  of  the  enjoyment  of  his  rights  over  his  property. 

The  foreigner  may  be  compelled  to  yield  a  part  or  the  whole 
of  his  property  for  the  public  use  but  he  may  require  the  payment 
of  a  just  and  fair  price,  to  be  determined  in  accordance  with  the 
territorial  law,  under  the  same  conditions  as  govern  citizens. 

1166.  It  is  the  duty  of  every  state  to  determine  the  property 
which  may  be  possessed  or  owned,  establish  the  legal  means  of 
acquiring  and  disposing  of  property,  and  assure  the  exercise  and 
enjoyment  of  all  the  rights  of  the  owner,  placing  the  foreigner  in 
the  same  position  as  the  citizen  with  respect  to  the  local  law  and 
regulations. 

1167.  The  right  to  dispose  of  property  at  death  either  by  will  or 
in  accordance  with  the  laws  of  intestacy,  and  the  right  to  require 
that  the  intrinsic  validity  of  the  testamentary  provisions  and  the 
order  and  measure  of  rights  by  succession  under  intestacy  may  be 
regulated  by  the  law  governing  the  status  and  capacity  of  the 
deceased  and  his  personal  and  family  relationships,  if  not  inconsist- 
ent with  the  above  mentioned  rules,  must  be  regarded  as  included 
within  the  rights  of  ownership  over  property. 

1168.  Possession  of  property  acquired  according  to  the  con- 
ditions fixed  by  territorial  law  and  having  the  character  required 
by  that  law,  should  produce  all  the  legal  consequences  ascribed  to 
it,  whether  the  possessor  be  a  citizen  or  a  foreigner. 

1169.  It  is  incumbent  upon  every  civilized  state  to  protect  the 
possessor,  even  if  a  foreigner,  and  to  grant  him  the  faculty  of 
availing  himself  of  all  the  legal  means  authorized  by  the  lex  loci, 
to  remove  obstacles  to  his  possession  and  enjoyment  of  the  prop- 
erty and  to  recover  such  possession  if  deprived  thereof. 

1170.  Legal  acts  or  conditions  accomplished  or  arising  in  con- 
formity with  the  territorial  law,  from  which  i-ights  of  property  may 
be  derived,  produce  the  same  legal  effects,  whether  brought  by  an 
alien  or  with  respect  to  property  owned  by  him.  (For  example, 
accession,  confusion,  specification,  compensation  for  betterment 
of  the  thing,  etc.) 

Compare  Fiore,  Dirittn  internazionale  privnio,  4th  ed.,  v.  II,  Book  III,  Dei 
diritti  che  hamio  per  oggello  le  cose. 

1171.  Rights  acquired  by  third  parties  over  real  or  personal 


454  INTERNATIONAL   LAW   CODIFIED 

property  by  virtue  of  the  lex  rei  sitce  must  be  governed  by  that  law, 
even  with  regard  to  the  property  of  foreigners,  and  although  their 
personal  rights  over  their  property  within  the  territory  are  gov- 
erned by  the  foreign  law. 

The  basis  of  this  rule  is  presented  in  the  principles  formulated  in  rules  1 162 
and  1163. 

1172.  The  state  must  recognize  and  protect  the  rights  of  owner- 
ship of  foreigners  whatever  the  nature  of  the  property  in  question 
may  be. 

Rules  established  must  consequently  be  considered  as  applicable 
to  private  property,  whatever  its  form,  whether  real  or  personal 
corporeal  property,  capable  of  possession  or  appropriation,  or 
incorporeal  rights,  the  products  of  the  intellect  or  industrial  in- 
vention, such  as  trade-marks  and  commercial  and  trade  names, 
bonds,  stocks,  temporary  or  perpetual  rents  supported  by  the  state 
and  any  other  form  of  property  having  a  pecuniary  value. 


LITERARY   PROPERTY 

1173.  The  right  of  an  author  to  works  of  the  intellect,  books, 
discoveries,  inventions,  intellectual  productions  of  all  kinds,  must 
be  protected  in  the  same  manner  as  property  in  corporeal  or  incor- 
poreal things. 

1174.  It  is  the  duty  of  the  state  to  determine  by  law  which 
works  of  the  intellect  may  be  worthy  of  protection,  the  conditions 
under  which  legal  protection  may  be  granted  and  how  it  may  be 
assured  and  limited.  Every  state  must  assimilate  aliens  to  na- 
tionals in  the  enjoyment  and  exercise  of  the  rights  of  authors  to 
the  products  of  their  intellects  and  the  institution  of  actions  at 
law  against  those  who  violate  their  rights. 

1175.  It  is  the  duty  of  states  to  establish  through  international 
convention  uniform  laws  for  the  legal  protection  of  intellectual 
property  and  provide  the  necessary  sanction  for  the  apprehension 
and  punishment  of  infringements  of  copyright,  maintaining  the 
right  of  each  of  them  by  its  own  legislation  to  enforce  the  perfor- 
mance of  the  treaty. 

The  principles  which  may  serve  as  the  basis  of  an  international  convention 
on  this  subject  may  be  determined  differently  according  to  the  greater  or  less 
protection  which  it  is  desired  to  afford  to  authors  in  proportion  to  the  work 


PROPERTY   BELONGING   TO   PRIVATE   INDIVIDUALS  455 

they  have  done  and  the  reward  to  which  they  are  entitled  for  the  services 
rendered  to  society.  Thus,  it  may  be  admitted  that  the  author  may  be  al- 
lowed to  reserve  the  right  of  authorizing  translations  of  his  work;  that  the 
duration  of  his  rights  be  extended  or  restricted;  that  the  causes  for  forfeiture 
be  determined  in  a  liberal  or  restrictive  manner,  etc.  All  these  matters  may 
constitute  the  object  of  special  laws  which  may  be  fixed  by  treaty  and  do  not 
come  within  the  general  rules  we  have  endeavored  to  set  forth. 

A  body  of  special  rules  on  the  subject  has  already  been  formulated  in  the 
treaty  for  the  protection  of  literary  and  artistic  property  concluded  at  Berne, 
between  Belgium,  France,  Germany,  Great  Britain,  Haiti,  Italy,  Liberia, 
Spain,  Switzerland  and  Tunis,  September  9,  1886.  See  further:  Fiore,  Dirilto 
internazionale  privalo,  4th  ed.,  v.  II,  Chap.  IX,  Turin,  1902,  and  the  French 
translation  of  Charles  Antoine,  Paris,  Pedone-Lauriel. 


WORKS   WORTHY   OF   PROTECTION 

1176.  Every  state  must  consider  as  worthy  of  legal  protection 
all  scientific,  literary  and  artistic  works,  i.  e.,  books,  dramatic  and 
musical  compositions,  designs,  paintings,  sculptures,  scientific 
models,  drawings  and  any  other  work  which  may  be  considered  a 
product  of  the  mind,  taste,  wit  and  intelligence  of  its  author. 

RULES  CONCERNING  THE  EFFECTS  OF  COPYRIGHT 

1177.  Copyright  acquired  by  the  author  of  an  intellectual  work 
in  the  country  of  original  publication  may  secure  legal  protection 
in  other  countries  only  upon  complying  with  the  formalities  of  the 
territorial  law. 

1178.  In  every  state  the  territorial  law  is  applied  to  determine 
whether  the  right  to  protection  has  been  acquired  or  lost,  and  to 
determine  questions  of  piracy  and  infringement  of  copyright. 

1179.  Copyright  originally  acquired  in  a  certain  state  cannot 
be  deemed  valid  in  a  foreign  country  by  the  territorial  law  of  which 
state  such  right  is  not  recognized. 

COMMERCIAL   AND   TRADE   NAMES 

1180.  The  commercial  name,  that  is,  the  name  which  identifies 
each  person  or  commercial  firm  must  be  regarded  everywhere  as  a 
part  of  the  property  of  the  person  or  association  entitled  to  be  so 
designated  and  should  be  protected  everywhere  as  is  the  physical 
person  or  entity  itself. 


456  INTERNATIONAL   LAW    CODIFIED 

1181.  Usurping  the  name  of  another  person  must  be  considered 
as  a  violation  of  his  rights  and  when  done  in  bad  faith  and  tor- 
tiously  it  must  be  punished  as  a  criminal  offense,  whether  the  per- 
son injured  be  a  citizen  or  an  alien. 

1182.  It  is  a  violation  of  international  law  for  a  state  to  permit, 
by  reason  of  the  absence  of  an  international  treaty,  the  usurpation 
of  the  commercial  name  of  a  foreigner  or  foreign  association  to  go 
unpunished,  when  such  usurpation  assumes  a  tortious  character. 

1183.  Every  state  must  sanction  by  law  the  rules  determining 
when  the  usurpation  of  a  commercial  name  assumes  the  character 
of  an  offense  and  gives  rise  to  judicial  action.  These  provisions  of 
the  law  must  be  considered  as  applying  to  all  interested  parties, 
without  distinction  between  citizens  and  aliens,  and  without  sub- 
ordinating their  application  to  the  principle  of  reciprocity. 

See  for  the  further  development  of  this  rule  and  of  the  principles  mentioned 
our  work  on  private  international  law  and  the  judicial  decisions  there  cited. 

1184.  The  name  of  a  person  or  commercial  association  cannot 
lose  its  character  as  such  when  it  is  part  of  a  trade-mark  or  is  con- 
nected with  commercial  emblems  or  other  signs.  It  cannot  be 
considered  as  subject  to  the  rules  concerning  trade-marks,  however, 
unless  the  owner  has  assigned  to  it  the  character  of  a  trade-mark  by 
registering  it  as  such. 

TRADE-MARKS 

1185.  Any  sign  may  be  considered  as  a  trade-mark  which  serves 
to  distinguish  products  of  a  manufacturer  or  a  certain  line  of 
business  and  of  which  the  manufacturer  or  merchant  has  acquired 
the  exclusive  use  in  the  country  of  origin  by  formally  recording  it 
under  the  provisions  of  law. 

1186.  The  right  of  every  merchant  and  manufacturer  to  in- 
dividualize the  products  of  his  trade  or  industry  by  certain  dis- 
tinctive signs  or  marks  and  to  prevent  the  unfair  use  by  others  of 
the  same  sign  to  deceive  consumers  must  be  regarded  as  one  of  the 
rights  which  should  be  protected  under  international  law  inde- 
pendently of  treaties  and  reciprocity. 

1187.  Every  state  may  fix  by  law  the  conditions  under  which  a 
person  may  claim  the  exclusive  use  of  a  trade-mark  or  under  which 
the  right  may  be  preserved  or  lost,  but  a  discrimination  between 


PROPERTY    BELONGING   TO    PR1\ATE    INDIVIDUALS  457 

citizens  and  aliens  or  a  toleration  of  fraud  or  unfair  competition 
must  be  regarded  as  contrary  to  international  law. 

1188.  Whenever  the  ownership  of  a  trade-mark  or  the  legal 
title  to  its  use  is  contested  the  'prima  facie  owner,  merchant  or 
manufacturer  must  prove  his  exclusive  right  to  use  the  trade-mark 
in  the  country'  where  the  suit  is  brought  and  that  the  right  has  not 
been  lost  by  virtue  of  its  laws  and  regulations. 

1189.  The  ownersliip  of  a  trade-mark,  lawfully  acquired  in  the 
countrj'  of  origin  should  be  regarded  as  acquired  in  all  other  coun- 
tries where  the  trade-mark  shall  have  been  duly  registered.  The 
alien  who  has  thus  acquired  the  right  to  the  exclusive  use  of  a 
trade-mark  must  be  permitted  to  assert  his  rights  and  obtain  pro- 
tection for  the  trade-mark  thus  registered.  He  may  invoke  the 
apphcation  of  the  criminal  laws  to  prevent  usurpation,  or  counter- 
feiting or  unlawful  use  thereof. 

1190.  The  penalties  against  the  usurpation  of  a  registered 
trade-mark  should  be  applied  without  distinction  against  citizen 
and  alien  and  a  criminal  action  must  be  instituted  on  request  of  the 
public  prosecutor  or  interested  parties,  in  accordance  with  the 
municipal  laws  of  each  state. 

NECESSITY    OF   A    CONVENTIONAL    " COMMON"    LAW 

1191.  States  which  have  by  common  agreement  established 
rules  for  the  acquisition  of  ownership  in  trade-marks  and  for  their 
legal  protection  must  bring  their  territorial  legislation  into  har- 
mony with  the  principles  of  conventional  law. 

PATENTS    FOR   INVENTIONS 

1192.  A  state  may  grant  to  an  inventor  and  his  assigns  the 
exclusive  privilege  of  working  his  invention  by  conferring  this 
exceptional  right  upon  him  by  means  of  a  patent.  It  may  also 
determine  by  law  the  conditions  under  which  such  privilege  may 
subsist,  as  well  as  its  duration,  extent  and  protection. 

1193.  The  patent  is  also  to  be  considered  as  a  privileged  con- 
cession granted  by  the  state  to  an  inventor.  It  can  never  give  to 
the  inventor  the  right  to  demand  respect  for  his  invention  in  other 
countries,  as  in  the  case  of  property  rights. 


458  INTERNATIONAL   LAW    CODIFIED 

INTERNATIONAL   PROTECTION    OF   PATENTS 

1194.  The  international  protection  of  patents  for  inventions 
can  be  secured  only  by  means  of  an  agreement  between  the  states 
and  can  be  effective  only  in  those  states  which  by  treaty  ad  hoc 
have  established  the  rules,  conditions  and  formaUties  necessary 
to  secure  in  their  respective  territories  the  legal  protection  of 
patents  granted  by  each  of  them. 

1195.  In  the  absence  of  such  an  agreement  every  state  may 
apply  within  its  own  territory  its  own  municipal  law  in  determin- 
ing whether  or  not  a  patent  shall  be  granted,  and  when  and  how 
infringements  and  the  sale  of  the  patented  articles  may  be  pre- 
vented and  punished. 

1196.  When  the  legal  protection  of  patents  is  assured  between 
two  or  more  states  by  means  of  a  treaty  the  privilege  acquired  in 
one  of  the  contracting  states  cannot  be  regarded  as  valid  in  the 
other  states  unless  the  patent  has  been  legally  secured  in  the 
country  of  origin  and  no  cause  of  forfeiture  has  arisen,  and  unless 
the  protected  inventor  shall  have  compHed  with  all  of  the  formali- 
ties required  by  the  municipal  law  of  each  state  to  enjoy  within 
its  territory  the  privilege  of  the  patent  and  the  preservation  of  his 
rights. 

1197.  An  inventor  who  may  in  a  given  state  demand  protection 
for  a  patent  taken  out  in  a  foreign  country  cannot  be  expropriated 
of  his  right  for  the  public  use  without  just  compensation. 

MERCHANT   SHIPS 

1198.  A  ship  can  have  only  one  nationality  and  it  cannot  ac- 
quire another  unless  it  establishes  by  means  of  a  document  fur- 
nished by  the  competent  maritime  authorities  of  the  country  of 
origin  that  it  has  completely  renounced  or  lost  the  right  to  fly  its 
flag. 

1199.  Every  ship  must  be  presumed  to  have  retained  its  na- 
tionality of  origin  so  long  as  it  does  not  establish  the  legitimate  ac- 
quisition of  another  nationality,  or  has  not  been  deprived  of  its 
national  character,  either  by  the  provisions  of  its  national  law  or 
by  the  operation  of  the  rules  of  customary  international  law. 

According  to  the  legislation  of  certain  states  a  ship  may  lose  its  national 
character.    This  is  the  case  under  the  Itahan  law  if  an  Italian  merchant  vessel, 


PROPERTY    BELONGING    TO    PRIVATE    INDIVIDUALS  459 

for  any  reason,  becomes  the  property  of  a  foreigner.  This  may  also  be  the  case, 
according  to  the  principles  of  international  law,  when  a  merchant  vessel  cap- 
tured in  time  of  war,  after  its  adjudication  to  the  captor  in  a  prize  court,  loses 
its  nationaUty  of  origin. 

1200.  Each  state  has  the  right  to  fix  the  conditions  which  mer- 
chant vessels  must  fulfill  in  order  to  obtain  national  registry  and 
the  right  of  flying  the  national  flag,  and  to  determine  when  the 
original  nationality  is  lost. 

PROOF   OF   THE   NATIONALITY    OF   A   VESSEL 

1201.  Every  vessel  is  bound  to  prove  its  nationahty  and  may 
demand  that  the  certificate,  in  proper  form  and  duly  authenticated 
and  endorsed,  obtained  from  the  state  to  which  it  claims  to  belong, 
shall  be  considered  as  conclusive  evidence  and  decisive  of  the 
question.  Such  certificate  must  be  regarded  as  prima  facie  suffi- 
cient to  establish  and  prove  its  nationality  in  the  absence  of  proof 
of  fraud  or  arbitrary  use. 

1202.  The  certificate  of  nationality  must  mention  the  name  of 
the  vessel,  its  dimensions,  its  tonnage  and  the  means  of  identify- 
ing it,  the  name  or  names  of  its  owner  or  owners,  specifying  the 
share  of  each,  the  maritime  district  in  which  it  is  registered,  its 
changes  of  ownership,  all  liens  and  mortgages  or  maritime  pledges 
existing  against  it,  and  everything  that  it  is  necessary  prima  facie 
to  know  in  order  to  establish  its  legal  status  with  respect  to  those 
having  rights  or  claims  against  the  vessel. 

The  legislation  of  the  various  states  is  not  uniform  in  this  matter.  According 
to  the  English  act  of  1854  (Merchant  Shipping  Act)  mortgages  need  not  be  de- 
scribed in  the  certificate  of  nationality,  but  only  registered  in  the  district  where 
the  ship  is  registered.  The  certificate  of  nationality,  however,  states  that  it 
does  not  constitute  a  title  or  document  to  establish  mortgages.  The  purpose 
of  our  rule  is  to  establish  that  the  papers  on  board  should  suffice  to  make  known 
the  legal  status  of  the  vessel  with  respect  to  its  owners  and  their  assigns  and 
to  give  notice  to  third  parties. 

1203.  It  should  be  deemed  a  matter  of  common  interest  for  all 
states  to  agree  upon  establishing  a  uniform  law  in  the  matter 
of  preserving  and  changing  the  national  character  of  merchant 
vessels  and  to  subject  the  grant  and  use  of  the  certificate  of  na- 
tionality to  such  conditions  as  may  be  required  to  safeguard  the 
carrying  of  passengers  and  the  security  of  navigation. 

The  conditions  required  for  the  granting  of  the  certificate  of  nationality 
must  on  principle  be  considered  as  within  the  domain  of  the  municipal  law  of 


460  INTERNATIONAL   LAW   CODIFIED 

each  state.  Neverthelesp.  the  conditions  gurroundinp  the  construction  oJ 
ships  with  respect  to  the  guaranty  of  capacity  required  of  ship  builders  as  well 
as  those  concerning  inspection  as  evidence  of  seaworthiness  must  always  be 
regarded  as  of  international  concern. 


RIGHTS   OF   A    MERCHANT   VESSEL 

1204.  Any  merchant  vessel  which  has  lawfully  acquired  the 
right  to  fly  the  flag  of  a  nation  and  obtained,  in  conformity  with 
its  laws,  a  certificate  of  nationality  has  the  right  everywhere  of 
invoking  the  application  of  its  national  laws  in  all  questions  relat- 
ing to  its  legal  status  as  an  object  of  property. 

1205.  The  law  of  the  national  state  of  a  vessel  must  likewise 
be  applied  to  determine  the  total  or  partial  transfer  of  ownership, 
the  nature  and  order  of  precedence  of  rights  acquired  by  creditors 
in  conformity  with  the  law  of  the  maritime  district  in  which  it  is 
registered,  and  the  obligations  and  responsibility  of  its  owners,  pro- 
vided, however,  that  the  latter  be  not  inconsistent  with  the  princi- 
ples of  public  law  or  public  policy  in  force  in  the  state  where  its 
application  is  invoked,  or  with  the  rules  of  international  law. 

MORTGAGES   AND   REAL   RIGHTS   IN  A   VESSEL 

1206.  The  national  law  of  a  vessel  must  determine  whether  it 
may  constitute  the  object  of  a  mortgage  or  lien.  By  that  law,  also, 
the  formalities  required  for  the  valid  acquisition  of  those  rights 
must  be  regulated,  to  determine  their  extent,  their  effect  and  con- 
ditions of  validity  and  their  duration  and  extinction, 

1207.  A  mortgage  on  a  foreign  vessel,  properly  registered  accord- 
ing to  its  national  law,  must  be  recognized  in  other  countries,  even 
in  those  whose  laws  have  not  recognized  maritimes  mortgages,  and 
the  mortgage  creditors  may,  in  conformity  with  the  foreign  law, 
claim  their  right  to  resort  to  foreclosure  proceedings  wherever  the 
vessel  may  be  found.  No  obstacle  can  be  found  in  the  diversity 
of  the  local  law  relating  to  foreclosure. 

1208.  The  rights  acquired  by  creditors  upon  a  vessel  in  a  cer- 
tain place  must  be  governed  by  the  law  of  that  place.  This  law 
must  always  recognize  real  rights  acquired  in  the  vessel  by 
third  parties  in  conformity  with  its  national  law  before  its  enter- 
ing territorial  waters,  provided  that  this  recognition  of  vested 


PROPERTY   BELONGING   TO    PRIVATE   INDIVIDUALS  461 

rights,  attaching  according  to  the  national  law  of  the  vessel,  as 
against  those  acquired  by  creditors  under  the  local  law,  shall  not 
involve  any  violation  of  local  public  law  or  public  policy. 

These  rules  seek  to  establish  that  the  ownership  of  a  vessel  and  its  transfer, 
entire  or  partial,  effected  through  a  mortgage  or  lien  which  the  owner  has  given 
as  security  for  a  debt,  must  be  everywhere  governed  by  the  law  of  the  state  to 
which  the  vessel  belongs,  regarding  as  the  permanent  situs  of  the  vessel  the 
maritime  district  in  which  it  has  been  registered  and  inscribed  after  its  con- 
struction. 

For  further  details  see  our  Dirilto  iniernazion<ile  privato,  3d  ed.,  v.  II,  chap. 
VII,  §  4,  and  the  French  translation  of  that  work  by  Charles  Antoine,  Paris, 
Pedone-Lauriel. 


BOOK  FOUR 

THE  ENUNCIATION  OF  INTERNATIONAL  LAW  AND 

ITS  ENFORCEMENT 


FUNDAMENTAL  PRINCIPLES 

1209.  All  states  constituting  a  de  facto  society  should  provide 
for  the  legal  organization  of  that  society,  especially  with  a  view 
to  preserving  a  state  of  peace  and  preventing  the  disturbances 
which  inevitably  result  from  war.    To  this  end  it  is  essential : 

(a)  To  create  (1)  a  supreme  organ  invested  with  the  power  of 
proclaiming  the  rules  of  "common"  law  and  assuring  their  obliga- 
tory force;  (2)  an  organ  charged  with  the  interpretation,  develop- 
ment and  appUcation  of  the  rules  proclaimed  in  order  to  safeguard 
their  observance;  (3)  a  tribunal  charged  with  adjudicating  legal 
controversies  arising  between  the  states  constituted  as  a  society 
when  by  diplomacy  and  other  means  agreed  upon  no  friendly 
arrangement  shall  have  been  reached; 

(6)  To  provide  for  the  punishment  of  violations  of  the  "  common  " 
law,  to  re-establish  the  authority  of  that  law  and  to  re-affirm  and 
strengthen  respect  for  it  by  coercive  measures  admissible  in  time 
of  peace; 

(c)  To  proclaim  the  legal  rules  according  to  which,  in  extreme 
cases,  the  use  of  force  may  be  legitimate,  to  punish  arbitrary  vio- 
lations of  the  ''common"  law  and  to  regulate  the  exercise  of  ex- 
ceptional rights  in  time  of  war,  with  reference  both  to  belhgerent 
and  neutral  powers. 

1210.  The  institutions  designed  to  meet  the  requirements  in 
paragraph  (a)  are  the  Congress,  the  Conference  and  Tribunals  of 
Arbitration.  The  principal  means  for  settling  disputes  and  pre- 
venting litigation  are  resort  to  diplomatic  negotiations,  good 
offices,  mediation  and  international  commissions  of  inquiry. 

The  coercive  measures  admissible  in  time  of  peace  to  attain  the 
purposes  indicated  in  paragraph  (b)  are  retorsion,  reprisals,  col- 
lective intervention  and  pacific  blockade. 

The  laws  and  customs  referred  to  in  paragraph  (c)  constitute 
the  law  of  war. 

A  large  number  of  states  established  in  different  parts  of  the  world  have 
gradually  constituted  themselves  into  a  de  faclo  society  and  have  in  principle 

464 


INTERNATIONAL    LAW:    ENUNCIATION    AND    ENFORCEMENT     465 

recognized  the  authority  of  international  law  in  regulating  their  relations 
among  themselves.  They  have  not,  however,  agreed  to  ascribe  to  the  rules  of 
international  law  the  authority  of  "common"  law  and  still  less  to  insure  its 
observance  by  legal  methods.  Therefore,  up  to  the  present  time  the  organiza- 
tion of  the  international  society  of  states  has  not  had  a  legal  basis.  The  ten- 
dency at  present  is  to  solve  the  problem  by  gradually  eliminating  the  unorgan- 
ized state  of  nature,  the  preponderance  of  force,  the  absence  of  a  "common" 
law,  and  to  give  to  international  society  a  legal  organization.  It  is  proper  to 
state  that  governments  have  already  made  a  beginning  in  the  right  direction, 
for  the  two  Hague  Conferences  of  1899  and  1907  constitute  the  most  important 
event  of  our  time. 

Under  these  conditions  of  fact  we  have  studied  the  solution  of  the  problem 
on  a  broader  plane,  taking  into  account  what  has  already  been  done  and  sug- 
gested as  a  solution  of  the  problem,  although  we  recognize  that  the  measures  we 
propose  could  not  at  present  be  brought  to  realization.  In  order  to  be  produc- 
tive, science  must  always  consider  not  only  the  present,  but  the  future  as  well. 
The  present  is  history  and  the  future  must  be  a  rational  development  of  the 
historical  fact.  Otherwise  progre.ss  cannot  be  conceded  as  possible  of  reali- 
zation even  in  a  more  or  less  distant  future,  but  would  be  merely  fanciful 
thought,  idealistic  and  Utopian.  Our  proposals,  though  admitting  that  they 
may  not  all  be  practicable  at  the  present  time,  have  for  their  basis  the  histori- 
cal fact  which  has  been  our  constant  guide,  and  appear  to  us  to  be  a  rational 
development  of  that  fact.  Time,  moreover,  has  justified  many  of  our  views. 
Many  propositions  set  forth  in  our  Nuovo  dirillo  internazionale,  published  in 
1865,  which  appeared  then  purely  idealistic,  have  become  actual  facts  (see 
supra,  Introduction.) 

In  order  to  provide  international  society  with  a  true  legal  organizaton  and  to 
develop  the  sentiment  of  justice,  it  will  be  necessary  gradually  to  eliminate  the 
preponderance  of  politics  and  to  admit  that  law  must  be  the  sovereign  of  the 
world.  In  order  to  attain  that  exalted  end  the  existence  of  an  international 
organ  or  agency  is  indispensable  to  elaborate  and  to  proclaim  the  "common" 
law  of  civilized  states  constituted  as  a  society  and  to  insure  its  obligatory  force. 
There  is  need  also  of  another  agency  or  organ  to  maintain  the  legal  organiza- 
tion established  and  the  observance  of  the  law  proclaimed.  Finally,  a  third 
agency  is  required  to  apply  the  law  and  to  settle  according  to  justice  the  con- 
troversies that  may  arise  between  states. 

The  institutions  that  we  propose,  the  Congress,  the  Conference  and  Tribu- 
nals of  Arbitration,  are  designed  to  bring  about  the  objects  indicated.  It  will 
be  well  to  take  into  account  the  rules  already  adopted,  and  those  likely  to  be 
adopted,  in  order  to  determine  the  attributes  and  functions  of  each  of  these 
institutions  so  as  to  effect  the  best  legal  organization  of  international  society. 

This  necessity  of  creating  such  a  legal  organization  by  means  of  organs  de- 
signed to  proclaim  the  "common"  law  and  to  assure  its  enforcement  had  al- 
ready been  recognized  by  eminent  publicists,  by  whom  different  solutions  have 
been  proposed.  Lorinier  recommended  the  permanent  establishment  of  three 
organs  such  as  those  existing  in  every  state,  namely,  an  international  parlia- 
ment, an  Executive  power  and  a  judiciary.  Bluntschli  advocated  also  an 
international  society  organized  as  a  state.  Others  were  in  favor  of  a  confedera- 
tion of  states,  with  a  central  power  endowed  with  the  legislative  fimction  and 
coercive  power  of  enforcement  and  having  at  its  disposal  the  federal  military 
force.  Yet  these  publicists,  by  proposing  to  a.scribe  a  preponderant  vote  to 
the  great  powers  tended  thereby  to  (■mi)hasizc  the  predominance  of  politics 


466  INTERNATIONAL   LAW    CODIFIED 

prevailing  among  those  powers.  (For  critical  observations  see:  Fiore,  Diritto 
inter nazionale  pubblico,  1865,  chap.  VI,  of  Part  second,  pp.  347  et  seq.;  Trattato 
di  diritto  internazionale,  v.  I,  I ntroduzione,  Chap.  VI,  pp.  94  et  seq.;  v.  II, 
§§  1498  et  seq.,  p.  489,  2d  edition.) 

We  shall  not  mention  the  other  systems  proposed  which,  in  general,  con- 
stitute no  improvement  because  they  imply  an  absolute  necessity  of  radically 
transforming  international  society,  or  sanctioning  the  superiority  of  the  great 
powers,  thus  supporting  necessarily  the  suprema,cy  of  politics  over  right. 

It  must  be  added,  that  the  best  conceived  legal  organization  will  never  pre- 
vent the  arbitrary  and  violent  infringement  of  "common"  law  established 
among  the  states.  Hence  the  necessity  for  coercive  measures  to  enforce  the 
observance  of  that  law.  Some  of  these  measures  may  be  resorted  to  without 
disturbing  peace,  but  where  they  remain  ineffectual  war  may  become  unavoid- 
able. The  idea  of  perpetual  peace,  cherished  by  philanthropists  as  the  ulti- 
mate result  of  legal  organization  of  international  society,  does  not  seem  to  us 
to  be  possible  of  fulfillment. 


TITLE  I 

THE  CONGRESS 

1211.  The  Congress  must  be  deemed  the  principal  organ  of  the 
international  society  constituted  by  all  of  the  states  entertaining 
de  facto  relations,  which  seek  to  organize  a  society  by  establishing 
in  common  accord  and  proclaiming  the  rules  governing  their  re- 
ciprocal relations,  by  making  provision  to  assure  their  observance, 
and  by  determining  upon  the  method  of  procedure  calculated  to 
bring  about  the  legal  settlement  of  any  international  controversy 
which  may  arise  between  them. 

In  view  of  the  fundamental  idea  that  the  states  constituting  a  de  faclo  so- 
ciety must  be  deemed  equal  and  independent,  whatever  their  actual  physical 
power  with  respect  to  territory,  population  and  financial  and  military  strength, 
it  follows  that  none  of  them  may  aspire  to  hegemony  and  still  less  assume  to 
dictate  its  laws  to  others.  As  it  is,  nevertheless,  indispensable  to  proclaim  the 
■'common"  law  of  the  international  society,  it  must  be  admitted  that  those 
which  constitute  it  should  proclaim  the  law,  provided  they  can  agree  upon  it. 

As  the  legal  rules  of  the  international  society  must  have  for  their  basis  the 
reciprocal  consent  of  its  members,  it  follows  that  they  cannot  be  dependent 
upon  the  arbitrary  interests  of  politics.  They  must  be  the  rational  expression 
of  the  principles  of  justice  as  best  adapted  to  the  present  conditions  of  that 
society,  so  as  to  protect  the  rights  of  its  members  and  to  safeguard  their  com- 
mon interests.  Nevertheless,  the  common  consent  of  states  is  indispensable 
in  order  to  secure  recognition  for  the  laws  and  to  proclaim  them,  as  well  as  to 
clothe  them  with  binding  force  by  punishing  their  violation.  To  attain  this 
end  an  organ  is  required,  endowed  with  sovereign  power,  which,  in  our  opinion, 
should  be  the  Congress.  The  Congress  should,  on  principle,  be  constituted 
as  mentioned  hereafter,  so  as  to  safeguard  the  legal  equality  of  the  states 
forming  the  international  society,  as  well  as  the  personal  rights  of  the  legal 
entities  which  compose  it. 

In  our  opinion  there  exist,  in  substance,  two  great  republics.  The  one 
has  neither  territorial  limits,  nor  seas,  rivers  or  mountain  boundaries,  and 
comprises  the  human  population  united  among  themselves  by  the  bonds  of 
civilization  and  their  collective  interests,  constituting  a  de  facto  society  or 
Magna  ciirilas.  The  other  republic  is  formed  by  those  who,  united  by  their 
social,  civil  and  economic  interests,  constitute  a  state. 

Neither  of  these  republics  can  exist  without  a  law  which  fixes  the  fundamen- 
tal rules  of  the  normal  development  of  their  activity  and  their  reciprocal  rela- 
tions and  actions.  The  observance  of  the.se  rules  must  be  admitted  as  indis- 
pensable to  their  harmonious  co-existence.  Each  of  these  republics,  therefore, 
is  under  the  neceasity  of  having  a  superior  organ  invested  with  the  power  of 

467 


468  INTERNATIONAL  LAW  CODIFIED 

proclaiming  the  organic  law  of  the  society.    This  superior  organ  in  the  greater 
republic  of  the  Magna  Civitas  must  be  the  Congress. 

In  effect,  the  reciprocal  independence  and  legal  equality  of  the  states  in  the 
de  facto  society  cannot  be  safeguarded  otherwise  than  by  requiring  these 
states,  assembled  in  a  Congress,  to  recognize  the  rules  most  conformable 
to  the  principles  of  justice  and  the  exigency  of  actual  fact,  and  therefore  best 
designed  to  regulate  their  common  relations,  and  to  proclaim  those  rules  as 
obligatory  upon  its  members.  On  the  other  hand,  with  respect  to  the  other 
republic,  namely,  that  constituted  by  each  individual  state,  the  people  thus 
politically  organized  in  each  country  constitute  the  superior  power  and  invest 
it  with  the  function  of  proclaiming  the  law  and  safeguarding  the  organization 
of  the  state.  It  is  thus  reasonable,  so  far  as  concerns  the  state,  that  the  organ 
designated  to  proclaim  the  law  should  be  the  organ  which  the  political  consti- 
tution entrusts  with  such  power. 

FUNCTIONS   OF  THE   CONGRESS 

1212.  It  is  the  duty  of  the  Congress : 

(a)  To  draw  up  the  legal  rules  which  must  govern  the  relations 
between  the  states  constituted  as  a  society,  and  to  declare  the 
rights  which  must  be  ascribed  to  the  persons  and  legal  entities 
constituting  part  of  the  Magna  civitas; 

(6)  To  amphfy,  modify  and  abrogate  rules  previously  enun- 
ciated ; 

(c)  To  provide  for  the  maintenance  of  legal  order  in  the  inter- 
national society  by  insuring  the  observance  of  respect  for  the 
"common"  law,  and  proclaiming  the  rules  which  must  govern  the 
use  of  coercive  measures  permitted  in  time  of  peace; 

{d)  To  devise  means  best  adapted  to  insure  peace  and  to 
eliminate  the  causes  of  difference  which  might  disturb  it; 

(e)  To  lay  down  rules  relating  to  compulsory  arbitration  and  to 
regulate  the  constitution  of  a  permanent  court  of  arbitration,  in- 
vested with  arbitral  jurisdiction  in  cases  where  the  parties  must  be 
considered  as  obligated  to  submit  to  arbitration; 

(/)  To  inaugurate  measures  best  adapted  to  prevent  an  impend- 
ing war  between  states,  members  of  the  society,  to  bring  them 
into  operation  and  arrest  the  disastrous  consequences  of  war  after 
hostilities  have  begun; 

{g)  To  regulate  war  by  proclaiming  the  rules  which  ought  to 
govern  war  and  be  applied  in  the  conclusion  of  peace,  so  as  to 
prevent  the  victor  from  taking  undue  advantage  of  his  power  to 
impose  upon  the  vanquished  unjust  conditions,  in  violation  of  the 
rules  of  orderly  co-existence  in  international  society; 


THE    CONGRESS  4(39 

(h)  To  protect  the  natural  rights  of  persons  and  legal  entities 
belonging  to  the  Magna  civitas,  with  respect  to  nations  and  peoples 
not  members  of  the  society; 

(i)  To  exercise  supreme  authority  over  the  Conference  by  modi- 
fying or  reversing  its  decisions,  and  over  any  state  declining  to 
comply  with  the  decisions  of  the  Conference  or  with  the  award 
pronounced  by  a  tribunal  of  arbitration,  by  ordering  the  emplo}'- 
ment  of  coercive  measures  to  assure  the  recognition  and  execution 
of  such  award; 

(j)  To  lay  down  rules  which  shall  govern  and  may  justify  collec- 
tive intervention  in  the  cases  contemplated  in  rules  556  et  seq.  in 
order  to  repress,  within  a  state,  disorders  involving  a  violation  of 
"common"  law; 

(k)  To  fix  the  reasonable  limit  of  armaments  in  time  of  peace,  by 
determining  the  maximum  contingent  of  army  and  navy  of  the 
states  of  the  society,  taking  into  account  their  special  conditions, 
the  requirements  of  internal  and  external  security  and  the  extent 
of  their  dominions,  both  continental  and  colonial. 

The  problem  of  the  limitation  of  armaments  is  beginning  to  impress  itself 
seriously  upon  the  attention  of  all  governments,  and  it  is  to  be  hoped  that  it 
will  be  finally  adjusted,  after  a  thorough  examination,  by  future  peace  con- 
ferences. In  the  last  Congress  of  1907  it  appeared  in  the  Russian  program, 
but  it  was  eliminated  owing  to  the  opposition  of  several  governments.  The 
question,  undoubtedly,  is  not  yet  ripe  for  settlement,  but,  as  the  burden  of 
military  expenditures  becomes  increasingly  heavy,  with  a  growing  disposition 
among  civilized  peoples  not  to  bear  such  a  burden,  the  necessity  of  limiting 
armaments  must  be  faced.  The  time  will  come  when  public  opinion  will 
succeed  in  imposing  itself  upon  governments,  whioh,  in  order  to  support  their 
international  policy  and  endeavor  to  maintain  themselves  in  the  first  rank  of 
states  are  prompted  to  burden  the  country  with  increasingly  heavy  charges. 
We  are  convinced  that  the  heavier  the  military  expenditures  become  the  sooner 
will  public  opinion  impose  on  governments  a  new  course  in  their  international 
policy,  which  will  make  possible  the  limitation  of  armaments. 

Be  this  as  it  may,  in  the  last  Peace  Conf(;rence  of  1907  the  following  motion 
was  unanimously  adopted: 

"The  Second  Peace  Conference  confirms  the  resolution  adopted  by  the 
Conference  of  1899  in  regard  to  the  limitation  of  military  expenditure;  and 
inasmuch  as  military  expenditure  has  considerably  intTcased  in  almost  every 
country  since  that  time,  the  Conference  declares  that  it  is  eminently  desir- 
able that  the  Governments  should  resume  the  serious  examination  of  this 
question." 

1213.  The  decisions  of  the  Congress  must  have  the  same  obliga- 
tory authority  and  value  as  any  positive  agreement  with  respect 
to  the  states  represented  and  actually  members  of  the  interna- 


470  INTERNATIONAL   LAW   CODIFIED 

tional  society  and  with  respect  to  other  states  wliich  may  be  con- 
stituted members  of  the  society  by  adhering  to  it. 

CONSTITUTION   OP   THE   CONGRESS 

1214.  The  Congress  should  be  constituted: 

(a)  By  representatives  of  the  states  constituting  the  society  of 
states; 

(6)  By  delegates  elected  by  the  people  of  the  states; 
(c)  By  delegates  elected  by  the  universities. 

1215.  The  representatives  of  the  states  shall  be  two  and  are 
to  be  designated  by  the  sovereign  of  each  state,  large  and  small 
states  being  equally  represented. 

The  delegates  of  the  people,  two  in  number,  shall  be  elected  by 
single  suffrage  by  those  who,  according  to  the  municipal  law  of 
each  country,  have  the  right  of  voting  for  delegates  to  the  Congress. 

The  scientific  delegates  to  the  number  of  ten  in  all  shall  be  elected 
by  a  system  of  limited  votes  by  all  the  universities  of  the  states 
represented. 

In  order  that  the  Assembly  or  Congress  may  have  its  own  distinctive  char- 
acter, that  of  representation  in  the  international  society,  it  has  seemed  to  us 
essential  that  it  should  be  so  constituted  as  to  make  such  representation 
effective  and  complete.  Accordingly,  we  believe  that  all  states,  small  or  great, 
weak  or  powerful,  should  be  placed  on  the  same  footing  of  liberty  and  equality, 
otherwise  strength  would  have  a  preponderating  influence  in  the  enunciation 
of  the  law  which  would  govern  the  Magna  cintas.  Just  as  within  the  state  the 
rights  of  man  cannot  be  in  proportion  to  his  physical  strength,  so  in  the  Magna 
civitas  the  rights  of  states  ought  not  to  depend  upon  their  importance. 

In  view  of  the  fact  that  the  international  society  does  not  merely  comprise 
the  states  which  are  subjects  of  international  law,  properly  speaking,  but  also 
other  forms  of  association  which  may  lay  claim  to  their  own  international 
rights  independent  of  those  of  the  state,  and  that  international  law  must 
govern  the  rights  and  interests  of  all  legal  entities  constituting  the  Magna 
cintas,  we  have  considered  it  indispensable  that  the  people  be  represented  in 
the  Congress. 

In  the  desire  to  give  such  representation  its  true  character,  we  have  deemed 
it  advisable  that  the  delegates  of  the  people  to  the  Congress  should  be  elected 
by  the  people  and  not  by  parliament.  In  a  parliamentary  government  the 
majority  represents  the  policy  of  the  present  government  actually  in  power, 
and  if  parliament  should  appoint  the  delegates  to  the  Congress  it  would  serve 
merely  to  give  added  strength  to  the  prevailing  policy. 

As  to  the  method  of  election  by  the  people,  we  do  not  believe  that  the  sys- 
tem in  use  for  political  elections  should  be  adopted.  The  electoral  vote  for 
representation  in  parliament  may  be  more  or  less  extended,  but  for  representa- 
tion in  the  Congress  it  is  indispensable  for  an  intelligent  and  enhghtened  vote 
that  the  electoral  right  be  exclusively  reserved  to  the  intelligent  classes. 


THE    CONGRESS  471 

We  havp  proposed  single  suffragi^  for  the  electors  called  to  choose  the  two 
delegates  in  order  to  secure  representation  of  minorities.  Absolute  govern- 
ment by  majority  is  not  government  of  the  people,  but  that  of  the  majority 
over  the  minority.  By  single  suffrage  the  two  delegates  having  the  greatest 
number  of  votes  would  be  elected,  and  thus  the  representation  of  the  popular 
majority  and  minority  would  be  obtained. 

Finally,  in  view  of  the  fact  that  in  elaborating  the  laws  of  the  Magna  civitas, 
reason  and  history  must  be  laid  under  contribution,  also  taking  into  account 
present  historical  contingencies  and  popular  convictions,  and  that  scholars  are 
qualified  by  reason  of  their  gifts,  to  formulate  the  principles  best  adapted  to 
govern  the  international  society,  we  have  deemed  it  advisable  that  science 
should  also  be  represented  in  the  Congress.  We  have  proposed  that  the  repre- 
sentatives of  science  be  limited  to  ten,  believing  that,  notwithstanding  their 
unquestioned  competency,  their  influence  should  not  be  preponderant,  for 
scholars  will  not  always  take  into  account  the  actual  conditions  which  must 
govern  the  drafting  of  positive  law.  They  often  follow  the  straight  scientific 
course  without  taking  account  of  the  fact  that  positive  law  cannot  be  best 
represented  by  such  course,  but  that,  on  the  contrary,  they  must  occasionally 
follow  a  modified  line,  more  or  less  close  to  the  straight  course,  and  that  posi- 
tive law  at  any  time  can  only  be  designed  to  obtain  the  best  and  to  avoid  the 
worst. 

We  have,  furthermore,  proposed  that  the  delegates  of  science  be  designated 
by  the  scientific  bodies  represented  by  the  universities,  and  we  have  suggested 
for  their  election  a  system  of  limited  suffrage  in  order  to  assure  among  them 
also  a  representation  of  minorities.  We  fully  realize  that  many  people  will 
consider  our  system  as  a  philosophical  conception  and  a  mere  Utopia.  We  do 
not  hesitate  in  saying  that  we  do  not  mean  to  claim  for  our  proposal  any  early 
realization,  but  that  it  can  only  be  achieved  in  the  more  or  less  remote  future. 
It  will  be  necessary,  in  the  first  place,  for  states  to  acquire  a  better  idea  of  their 
reciprocal  interests;  for  states  to  understand  the  necessity  of  giving  the  Magna 
civitas  a  more  rational  legal  organization  and  finally  to  be  able  to  impose  upon 
their  governments  the  task  of  thoroughly  solving  the  problem.  It  will  be  the 
work  of  time,  and,  indeed,  of  a  very  long  time.  The  organization  of  the  people 
associated  as  states  did  not  take  place  in  a  day.  Evolution  has  experienced 
several  cycles;  the  successive  preponderance  of  the  sacerdotal  caste,  and  of 
privileged  castes,  autocracy,  first  of  the  monarchies  of  divine  right  and  then 
of  dynastic  policy,  and  finally,  parliamentary  government. 

The  organization  of  international  society  can  only  come  about  through  evo- 
lution.   The  initial  movement  must  describe  its  parabola  in  successive  cycles. 

The  two  Hague  Conferences  represent  one  of  the  cycles  truly  characteristic 
of  evolution.  It  is,  indeed,  a  fact  most  worthy  of  consideration,  that  in  1899 
and  1907  a  great  many  states  in  various  parts  of  the  world  met  at  The  Hague 
in  order  to  proclaim  by  common  agreement  the  rules  of  their  relations  and  to 
formulate  their  common  law  of  nations  in  regard  to  many  questions.  The 
states  represented  in  these  two  great  assemblies  had  the  true  character  of  a 
Congress,  in  our  sense  of  the  term,  26  in  1899,  and  44  in  1907,  namely, 
Argentina,  Austria-Hungary,  Belgium,  Bolivia,  Brazil,  Bulgaria,  Chile,  China, 
Colombia,  Cuba,  Denmark,  Dominican  Republic,  Ecuador,  France,  Germany, 
Great  Britain,  Greece,  Guatemala,  Haiti,  Italy,  Japan,  Luxemburg,  Mexico, 
Montenegro,  Netherlands,  Nicaragua,  Norway,  Panama,  Paraguay,  Persia, 
Peru,  Portugal,  Roumania,  Russia,  Salvador,  Servia,  Siam,  Spain,  Sweden, 
Switzerland,  Turkey,  United  States,  Uruguay  and  Venezuela. 


472  INTERNATIONAL   LAW   CODIFIED 

One  thing  leads  to  another.  The  fact  already  achieved  is  that  the  legislative 
assembly  of  international  society  has  been  constituted  and  before  adjournment 
of  the  second  conference  unanimously  expressed  the  wish  that  a  third  confer- 
ence or  congress  be  held  within  a  period  of  time  equivalent  to  that  between 
the  first  and  second  conferences,  and  that  a  committee  be  created  to  prepare 
the  program  and  to  collect  the  different  propositions  and  to  assemble  the 
matters  susceptible  of  international  regulation.  Under  these  conditions  it 
may  already  be  affirmed  that  the  Congress  or  Legislative  Assembly,  as  an 
institution  suggested  by  us  in  our  first  edition  of  1890,  translated  into  French 
by  Chretien  in  1893,  is  an  accomplished  fact,  and  that  at  present  all  that  re- 
mains to  be  done  is  to  perfect  its  organization,  to  set  forth  its  objects  with 
greater  precision,  and  to  better  regulate  its  constitution. 

1216.  Besides  sovereign  and  autonomous  states,  that  is  to  say, 
those  having  the  complete  enjoyment  and  independent  exercise 
of  the  rights  of  sovereignty,  both  internal  and  external,  there 
should  likewise  be  admitted  to  the  Congress  semi-sovereign  states, 
namely,  those  in  a  relation  of  vassalage  toward  or  dependence 
upon  a  suzerain  state. 

As  on  principle  there  is  no  doubt  that  semi-sovereign  states,  as  well  as  sov- 
ereign states,  belong  to  the  Magna  ciinlas,  it  follows  that  they  should  likewise 
be  admitted  to  the  deliberations  of  the  Congress  and  to  cast  a  vote  in  the  pro- 
mulgation of  the  legal  rules  which  must  protect  the  rights  of  all  the  legal  en- 
tities constituting  the  international  society. 

Bulgaria,  notwithstanding  the  fact  that  it  was  under  the  dependency  of 
Turkey,  was  allowed  to  take  part  in  the  Hague  Conference. 

It  would  be  best  that  representation  in  the  Congress  be  as  great  as  possible. 

1217.  The  Pope,  as  sovereign  head  of  the  Catholic  Church, 

may  be  admitted  to  the  Congress,  provided  that  he  recognizes 

that  he  participates  therein,  not  in  the  same  capacity  as  any  other 

political  sovereign  but  as  the  spiritual  sovereign  of  the  CathoUc 

Church. 

In  view  of  the  rules  posited  to  determine  the  legal  status  of  the  Roman 
Catholic  Church,  and  the  character  of  its  international  personality,  it  follows 
that,  while  the  Church  may  not  be  assimilated  to  a  state,  it  belongs,  neverthe- 
less, to  the  international  society  and  may  claim  international  rights.  It  has 
undoubtedly  the  right  to  be  represented  in  the  Congress  in  order  to  request 
the  protection  of  its  international  rights  ^s  a  subject  of  Magna  civitas.  To  be 
sure,  so  long  as  the  Church  persists  in  its  claims  to  temporal  power,  and  shall 
desire  to  be  assimilated  to  a  state,  it  will  be  impossible,  with  such  unjustified 
pretensions,  to  admit  it  to  the  deliberations  of  the  Congress  of  states.  To  do 
.so  would  be  indirectlj'  equivalent  to  assimilation  and  to  confuse  the  two  in- 
terests of  state  and  church  which,  as  previously  shown,  are  and  must  remain, 
by  reason  of  their  character  and  purpose,  completely  separate.  (Compare 
rules  74  to  76,  and  729.) 

1218.  The  members  of  the  Congress,  on  their  first  meeting, 
shall  appoint  their  President  and  other  officers. 


THE   CONGRESS  473 

1219.  The  Congress  shall  initiate  its  labors  by  verifying  the 
legality  of  the  certificates  of  election  or  appointment  of  its  mem- 
bers. 

After  this  preliminary  work,  provision  ought  to  be  made  for  the 
discussion  of  questions  which  are  to  constitute  the  object  of  its 
deliberations,  in  accordance  with  a  program  in  which  the  topics  to 
be  discussed  will  have  been  determined  in  their  order  of  discussion. 

The  representatives  of  states  and  the  delegates  to  the  Congress 
shall  retain  their  character  as  such  until  such  time  as  the  Congress 
to  which  they  are  delegated  shall  have  ended  its  labors. 

CONVOCATION   AND   DURATION   OF   THE    CONGRESS 

1120.  The  Congress  may  be  convoked  on  the  initiative  of  one 
of  the  member  states  of  the  society,  which  shall  present  in  a  diplo- 
matic note  the  reasons  why  the  meeting  of  a  general  Assembly  is 
considered  opportune,  designating,  as  well,  the  country  in  which 
it  shall  meet.  This  note  shall  be  addressed  to  all  of  the  member 
states  of  the  society  and  shall  be  sufficient  to  convoke  the  meeting 
of  the  Congress  when  it  is  supported  by  a  third  of  the  states  which 
shall  have  taken  part  in  the  previous  Congress. 

1221.  The  Congress,  constituted  as  a  result  of  the  convocation, 
shall  remain  in  session  until  the  completion  of  the  labors  for  which 
it  was  convoked. 

The  Congress,  in  our  view,  is  not  a  permanent  body,  nor  do  we  claim  any 
permanence  of  power  for  its  members. 

Undoubtedly  the  international  society  cannot  remain  at  a  standstill.  Hence 
the  laws  adopted  in  common  accord  to  govern  it  cannot  remain  immutable. 
As  these  laws  must  be  adapted  to  historical  and  moral  requirements  and  to  the 
needs  of  such  society,  it  is  natural  that  when,  owing  to  changes  and  the  devel- 
opment of  their  respective  interests,  the  laws  in  force  become  inadequate,  it 
is  necessary  to  modify  them  and  to  convoke  for  that  purpose  a  new  Congress. 
Hence,  it  must  be  deemed  preferable  to  deny  the  permanence  of  the  powers 
of  the  members  of  the  Congress  who  are  to  enunciate  new  laws,  because  they 
will  be  better  able  to  respond  to  the  needs  of  progress  and  inevitable  evolution. 

1222.  The  conclusions  of  the  Congress,  adopted  by  majority, 
ought  to  have  the  same  authority  as  any  international  agreement 
and  the  rules  proclaimed  by  it  ought  to  have  the  character  of  posi- 
tive rules  with  respect  to  all  the  states  of  the  international  society, 
including  those  subsequently  joining  it,  and  none  ought  to  disre- 
gard the  binding  force  of  such  rules  so  long  as  they  have  not  been 
amended  by  a  new  Congress. 


474  INTERNATIONAL   LAW   CODIFIED 

In  view  of  the  fact  that  the  rules  and  laws  of  the  Magna  civitas  must  be 
those  which  its  representatives,  that  is  to  say,  the  Congress,  have  proclaimed 
as  best  adapted  to  govern  the  relations  of  all  the  legal  entities  constituting  it, 
it  is  reasonable  to  assume  that,  once  decided  upon,  a  rule  of  international  law 
must  be  binding  upon  all  the  member  states,  and  that  none  of  them  should 
disregard  the  authority  thereof  by  making  reservations.  At  present,  it  is  ad- 
mitted that  any  one  of  the  states  assembled  in  a  Congress  may  avoid  the  bind- 
ing force  of  the  rules  adopted  by  the  Congress  by  making  reservations  upon  the 
principles  adopted  by  the  majority.  This  can  be  done  because  at  present  the 
principles  which  must  govern  the  Congress  and  the  authority  of  their  con- 
clusions are  not  yet  definitely  established.  A  state  may  or  may  not,  as  it 
chooses,  come  into  a  Conference  and  prefer  a  condition  of  complete  isolation, 
but  it  does  not  seem  admissible  in  our  opinion  that  a  state  may  be  a  member 
of  the  international  society  and  yet  disregard  the  authority  of  the  laws  which 
must  govern  it.  This  would  in  effect  be  admitting  that  the  representative  of 
an  electoral  district,  by  his  reservation  upon  the  binding  force  of  a  law  enacted 
by  the  legislature,  could  save  his  district  from  the  authority  of  a  law  adopted 
by  the  majority. 

Bonfils  is  of  the  opinion  that  the  minority  cannot  be  compelled  to  submit 
to  the  vote  of  the  majority,  because  thereby  the  independence  of  every  state 
would  be  compromised  and  diminished.  {Droit  international  public,  §  806.) 
This  cannot  be  denied  under  present  conditions.  But  if  our  system  could  be 
adopted,  if,  in  other  words,  the  states  were  to  recognize  the  Congress  as  the 
supreme  agency  through  which  rules  governing  their  relations  could  be  es- 
tablished, it  would  not  be  necessary  to  agree  with  Bonfils.  Certainly,  every 
state  would  be  free  to  join  or  not  to  join  the  union  or  society  of  states.  But  it 
would  be  inadmissible  that,  although  a  member,  such  state  could  freely  avoid 
the  authority  of  a  law  adopted  by  the  legislative  power  of  the  union,  namely, 
the  Congress,  and  that  the  other  states  of  the  union  or  society  could  not  resort 
to  any  methods  proper  in  time  of  peace  to  compel  such  recalcitrant  state  to 
recognize  the  binding  force  of  the  law  adopted.  If  it  were  otherwise,  the  legal 
rules  of  the  international  society,  framed  by  the  states  constituted  as  a  union 
would  be  binding  only  upon  those  willing  to  recognize  them.  How,  under  such 
conditions,  could  the  international  society  be  given  a  true  legal  organization? 

1223.  The  functions  of  each  Congress  must  be  regarded  as  con- 
cluded with  the  signature  of  the  treaty  in  which  are  incorporated 
the  rules  adopted  by  its  members,  or  with  the  signature  of  the  final 
and  general  protocol,  in  which  all  the  protocols  previously  sub- 
scribed are  approved  and  confirmed. 


PROCEDURE 

1224.  Every  member  whose  credentials  as  a  member  of  the 
Congress  are  approved  shall  be  entitled  to  take  part  in  and  vote 
in  all  the  deliberations  of  the  Congress. 

1225.  Each  member  of  the  Congress  shall  be  entitled  to  one 
vote. 


THE    CONGRESS  475 

The  vote  shall  always  be  cast  by  name,  according  to  the  alpha- 
betical order  of  the  states  represented.  Any  proposition  shall  be 
considered  approved  when  voted  for  by  a  majority  of  the  members 
present. 

1226.  Whoever  shall  have  taken  part  in  the  discussion  shall  be 
bound  to  cast  his  vote  and  subscribe  the  resolution.  In  case  the 
delegates  of  a  state  who  have  taken  part  in  the  discussion  shall 
absent  themselves  from  the  meeting  in  which  the  vote  is  to  be  signed 
or  shall  refuse  to  sign  it,  they  would  be  guilty  of  censurable  con- 
duct in  neglect  of  the  general  duties  incumbent  upon  all  the  states 
of  the  union  represented  in  the  Congress,  and  mention  of  the  mat- 
ter should  be  made  in  the  proceedings  of  the  Congress.  The  dele- 
gates of  a  state  signing  a  resolution  adopted  by  the  majority, 
against  which  they  have  voted,  shall  be  allowed  to  insert  in  the 
record  of  the  proceedings  their  dissenting  vote,  indicating  the  rea- 
sons therefor. 

1227.  The  proceedings  of  the  Congress  must  be  drawn  up  in 
writing  and  the  discussions  and  resolutions  of  each  meeting  must 
be  confirmed  in  a  protocol  to  be  signed  by  all  the  representatives, 
whether  members  of  the  majority  or  minority. 

All  the  proceedings  of  the  Congress  should  be  officially  pub- 
lished. 

1228.  When  the  Congress  is  called  upon  to  examine  and  pass 
upon  the  resolutions  adopted  by  a  Conference  it  may  not  only 
require  the  exhibition  of  all  the  papers  and  documents  submitted 
to  the  Conference,  but  may  also  require  the  production  of  other 
documents  and  papers  which  may  be  deemed  necessary  for  its 
information. 

SANCTION    OF   THE    RESOLUTIONS    OF   THE    CONGRESS 

1229.  The  Congress  shall  insure  the  proper  recognition  of  its 
resolutions  by  providing  appropriate  penalties  to  that  end. 

1230.  When  the  Congress  proclaims  a  new  rule  binding  upon  all 
the  member  states  of  the  union  or  society,  the  power  to  declare 
any  state  which  refuses  to  abide  by  the  rule  as  excluded  from  the 
"  union  "  must  be  deemed  a  sufficient  sanction  to  assure  respect  for 
the  rules  adopted.  Moreover,  a  state  desiring  to  continue  its  de 
facto  relations  as  a  mcml)or  of  the  union  cannot  be  permitted  to 


47()  INTERNATIONAL    LAW    CODIFIED 

disregard  the  imperative  authority  of  any  of  the  legal  rules  pro- 
claimed by  the  Congress. 

1231.  When  the  Congress,  in  the  general  aim  to  assure  peace 
and  prevent  war,  has  proclaimed  a  legal  rule  and  adopted  a  resolu- 
tion with  a  view  to  settle  a  difficulty  pending  between  two  or  more 
states,  these  states  may  be  compelled  to  comply  with  the  resolution 
or  decision  by  all  lawful  means  proper  in  time  of  peace. 

In  view  of  the  fact  that  the  preservation  of  peace  is  of  chief  interest  and  that 
war  gives  rise  to  a  very  serious  moral  and  economic  disturbance,  not  only  with 
regard  to  the  belligerents,  but  also  with  regard  to  all  the  states  constituting  the 
Magna  ciuilas,  the  Congress,  as  the  supreme  agency  for  the  protection  of  the 
general  interests,  must  possess  the  power  to  order  the  use  of  all  peaceful  means 
to  obtain  the  observance  of  its  resolutions  and  conclusions  and  prevent  war. 

1232.  When  the  Congress  shall  have  directed  one  or  more  of  the 
states  of  the  "  union  "  or  society  to  resort  to  lawful  and  peaceful 
means  to  compel  the  refractory  state  to  observe  a  resolution  or  rule 
concerning  it,  the  state  or  states  intrusted  with  such  a  mandate  will 
be  invested  as  of  right  with  all  the  powers  granted  by  international 
law  for  the  execution  of  the  mandate.  This  ought  to  be  the  case 
when  the  Congress  shall  direct  a  state  to  exercise  its  good  offices 
or  mediation  or  shall  appoint  an  international  commission  of  in- 
quiry. 

1233.  Should  the  Congress  recognize  that,  under  the  principles 
of  "common"  law,  it  would  be  proper  to  impose  arbitration  upon 
the  parties  to  a  dispute,  it  could  order  arbitration  and  determine 
the  rules  for  the  constitution  of  the  arbitral  tribunal,  assuming 
that  a  permanent  court  of  arbitration  shall  not  have  been  estab- 
lished (as  it  should  be)  for  the  exercise  of  arbitral  jurisdiction  in 
cases  for  which  the  Congress  should  determine  arbitration  to  be 
obligatory. 

As  we  shall  see  hereafter,  arbitration  can  only  become  an  institution  capable 
of  peacefully  settling  difficulties  and  preventing  war  on  condition  that  it  be 
obligatory.  We  believe,  therefore,  that  the  Congress  ought  to  have  the  right 
to  determine  arbitration  to  be  obligatory  whenever  it  considers  it  advisable. 

1234.  When,  after  the  exhaustion  of  all  other  means  to  compel 
a  refractory  state  to  execute  its  rules  or  decisions,  the  Congress 
shall  deem  a  resort  to  coercive  measures  indispensable,  it  shall  have 
the  right  to  order  a  pacific  blockade  and  to  entrust  to  certain  states 
of  the  union  or  society  the  task  of  applying  such  measures.  The 
states  thus  designated  shall  be  invested  as  of  right  with  all  the 


THE    CONGRESS  477 

powers  necessary  to  make  the  blockade  effective,  taking  into  ac- 
count the  special  rules  which  the  Congress  may  have  established 
with  respect  to  the  use  of  such  measures  of  forcible  execution.  The 
other  states  would  be  bound  to  abide  by  the  determination  of  the 
Congress  and  to  adopt  the  measures  required  to  make  the  blockade 
effective. 

The  precedents  established  with  reference  to  the  pacific  blockade  against 
China  and  Greece  support  our  proposition,  which  aims  at  legitimating  this 
method  of  forcible  execution.  We  l)elieve  that  in  order  to  bring  about  a  realiza- 
tion of  a  more  just  and  rational  system  of  safeguarding  the  law,  the  duty  of 
ordering  a  pacific  blockade  and  declaring  it  binding  upon  all  the  states  must 
be  undertaken  by  the  states  assembled  in  Congress,  so  as  to  prevent  combina- 
tions between  the  more  powerful  states  which  might  exercise  a  preponderant 
influence  in  international  politics. 

1235.  In  case  of  a  serious  and  violent  attack  upon  the  legal  rules 
of  the  international  society,  the  Congress,  after  the  unsuccessful 
employment  of  other  means  of  establishing  the  authority  of  the 
law,  may  authorize  recourse  to  armed  force  against  the  states 
which  have  successfully  resisted  peaceful  measures  of  coercion. 
This  would  be  an  example  of  intervention  legitimated  by  the  prin- 
ciples which  justify  collective  intervention  and  the  use  of  armed 
force  to  punish  the  violation  of  international  law. 

When  this  extreme  measure  is  ordered  by  the  Congress  the 
state  or  states  of  the  union  authorized  to  resort  to  armed  force  to 
punish  violations  of  the  common  law  of  nations  and  to  restore  its 
authority  must  be  rightfully  regarded  as  allies  for  the  purpose. 
All  the  other  states  of  the  "  union  "  must  necessarily  be  regarded  as 
neutral. 


TITLE  II 
THE  CONFERENCE 


DEFINITION 

1236.  The  Conference  is  an  agency  of  high  administration,  a 
sort  of  executive  power  possessing  the  faculty  to  maintain  and 
protect  the  legal  organization  established  by  the  Congress  and  to 
apply  the  rules  proclaimed  to  settle  questions  of  general  interest 
which,  by  their  nature,  cannot  constitute  the  object  of  an  award. 

According  to  our  system  the  Conference  would  be  an  agency  of  the  interna- 
tional society  with  a  purpose  quite  distinct  from  that  of  the  Congress.  The 
Congress  ought  to  be  empowered  to  proclaim  the  rules  which  shall  constitute 
the  basis  of  the  legal  organization  of  the  international  society.  The  Confer- 
ence ought  to  maintain  the  legal  organization  estabhshed  by  the  Congress, 
to  assure  the  recognition  of  the  rules  proclaimed  and  to  apply  them  in  appro- 
priate cases. 

At  the  present  time  there  is  no  substantial  difference  between  a  Conference 
and  a  Congress.  This  is  due  to  the  fact  that  the  true  principles  of  the  legal 
organization  of  international  society  and  the  agencies  best  adapted  to  bring 
it  about  are  not  yet  fully  understood.  When,  in  the  future,  a  more  rational 
organization  of  international  society  will  be  constituted,  the  necessity  must  be 
recognized  of  estabUshing,  on  the  one  hand,  an  agency  to  draw  up,  elaborate 
and  proclaim  the  rules  of  the  society,  namely,  the  Congress,  and,  on  the  other 
hand,  a  distinct  agency  entrusted  with  their  execution,  namely,  the  Conference. 

At  the  present  time  the  term  "Congress"  or  "Conference"  is  indifferently 
ascribed  to  an  assembly  of  states  united  for  the  purpose  of  regulating  their 
relations  by  an  agreement.  Thus,  the  term  Conference  was  applied  to  the 
assembly  of  states  w^hich  met  at  Berlin  in  1884-5  to  protect  the  liberty  of 
navigation,  industry  and  commerce  in  the  regions  of  Africa,  and  which  pro- 
claimed, by  the  General  Act  of  February  26,  1885,  the  rules  governing  the 
occupation  of  African  territories  for  protectorates,  and  for  the  improvement 
of  the  moral  and  material  condition  of  the  natives.  The  term  Conference  was 
also  applied  to  the  assembly  that  met  at  Brussels  in  1889  to  develop  and  apply 
the  principles  enunciated  at  Berlin  by  establishing  in  common  accord  rules 
designed  for  the  suppression  of  slavery,  which  were  proclaimed  in  the  anti- 
slavery  Act  of  July  2,  1890. 

In  our  opinion,  the  term  Conference  is  properly  applied  to  the  meeting  at 
Brussels,  which  did  not  declare  new  principles  but  merely  applied  and  devel- 
oped those  which  had  been  proclaimed  at  the  Congress  of  Paris  in  1856  and  the 
Conference  of  Berlin  in  1885,  which,  like  that  of  Paris,  should  have  been  called 
a  Congress.    In  Uke  manner,  the  meeting  of  the  states  held  at  The  Hague  in 

478 


THE   CONFERENCE  479 

1899  and  in  1907  called  "Peace  Conferences  "  should  rather  have  been  called 
"Congresses,"  their  object  having  been  to  enunciate  superior  principles,  to 
strengthen  peace  and  prevent  war  as  well  as  rules  which  should  govern  certain 
relations  arising  out  of  war.  These  two  assemblages  constitute  the  most  im- 
portant precedent  of  our  time,  and  furnish  an  admirable  example  for  future 
Congresses,  as  we  understand  them. 


CONSTITUTION   OF  THE    CONFERENCE 

1237.  The  Conference  should  be  constituted: 

(a)  By  two  representatives  of  the  great  powers  appointed  to 
the  Congress.  When  the  representative  designated  cannot  fulfill 
his  duties  by  reason  of  death,  illness,  or  other  cause,  the 
sovereign  of  the  state  shall  appoint  a  representative  to  the  Con- 
ference; 

(6)  By  five  delegates  appointed  by  the  Congress  from  among 
the  delegates  of  the  people  in  the  Congress; 

(c)  By  the  representatives  of  the  state  or  states  which  have  a 
direct  and  material  interest  in  the  questions  to  be  discussed  by  the 
Conference. 

1238.  The  designation  of  the  members  of  the  Conference  shall 
be  made  by  the  Congress  before  the  termination  of  its  labors  and 
the  members  so  designated  shall  be  invested  with  all  their  powers 
until  the  meeting  of  a  new  Congress. 

1239.  The  admission  of  the  representatives  of  the  state  or  states 
which  have  a  direct  and  material  interest  in  the  question  to  be 
discussed  by  the  Conference  shall  be  decided  upon  by  the  Con- 
ference itself  at  its  first  meeting. 

To  justify  our  proposition  it  may  be  observed  that,  as  the  Conference  must 
constitute  a  sort  of  executive  body  delegated  by  the  Congress  to  assure  a  recog- 
nition of  the  laws  enacted  by  it  and  to  exercise  functions  of  high  administra- 
tion, it  is  reasonable  to  hold  that  the  number  of  its  members  should  be  hmited. 
We  believe  that  it  should  be  composed  only  of  representatives  of  the  great 
powers,  because  it  cannot  be  denied  that  the  latter  are  more  competent  and 
more  interested  than  other  states  in  preventing  disturbances  which  may  arise 
from  the  non-observance  of  the  laws  enacted  by  the  Congress.  Always  firm  in 
the  desire  to  avoid  in  all  international  questions  the  preponderance  of  political 
influence,  we  have  considered  it  advisable  that  there  be  popular  representation 
in  the  Conference  in  order  to  protect  the  interests  of  the  international  com- 
munity and  the  peoples  which  constitute  it. 

So  far  as  concerns  the  representation  of  the  interested  state  or  states  it  has 
appeared  to  us  in  conformity  with  general  principles  of  justice  and  equity  that 
they  should  be  at  least  permitted  to  assert  their  contentions,  even  though  they 
may  not  be  granted  a  deliberative  vote. 


480  INTERNATIONAL    LAW    CODIFIED 

DUTIES   OF   THE    CONFERENCE 

1240.  The  Conference  shall  be  deemed  competent: 

(a)  To  apply  any  legal  rules  enunciated  b}'  the  Congress  and 
to  settle  any  question  of  complex  interest  which,  by  reason  of  its 
nature,  cannot  be  the  object  of  an  award; 

(6)  To  interpret  the  rules  designed  to  preserve  the  legal  organi- 
zation of  international  society  as  proclaimed  by  the  Congress, 
without,  however,  interfering  with  the  substantial  authority  of 
these  rules. 

Nevertheless,  in  the  absence  of  a  special  provision  in  the  rules 
adopted  by  the  Congress,  the  Conference  could,  under  the  partic- 
ular circumstances  of  a  case,  deduce  the  applicable  rule  from  that 
enacted  by  the  Congress,  either  by  a  Uteral  interpretation  or  by 
analog^',  provided,  however,  that  a  different  sense  from  that 
clearly  expressed  be  not  arrived  at  nor  a  new  rule  of  "common" 
law  derived  from  the  general  principles  of  international  law; 

(c)  To  order  a  reference  to  arbitration,  even  in  the  absence  of 
an  agreement  to  that  effect  between  the  parties,  either  in  cases 
where,  according  to  the  rules  established  by  the  Congress,  a  sub- 
mission to  a  court  of  arbitration  shall  be  deemed  compulsory,  or 
in  the  case  contemplated  in  rule  825;  to  settle  the  difficulties  which 
may  arise  from  the  execution  of  an  arbitral  award;  to  examine  the 
grounds  of  nullity  invoked  against  such  an  award  by  the  defeated 
party;  and  to  pass  judgment  upon  the  request  for  re\'ision  of  the 
award ; 

(d)  To  examine  the  circumstances  which  might  justify  collective 
intervention  in  accordance  with  rules  556  et  seq. ;  to  regulate  such 
intervention,  according  to  its  purpose,  when  authorized  by  the 
Congress,  and  to  control  its  operation; 

(e)  To  safeguard  the  rights  of  aUens  injured  by  the  action  of  a 
government  which  shall  have  abused  its  authority  by  arbitrarily 
violating  their  rights  or  by  refusing  to  carr\'  out  its  engagements 
or  admit  the  just  pecuniary'  claims  of  the  interested  parties, 
thereby  creating  an  abnormal  condition  of  affairs. 

This  would  be  the  case  if  a  government  arbitrarily  and  un- 
justifiably refused  to  pay  its  contractual  debts; 

(/)  To  authorize  the  emplo>Tnent  of  diplomatic  measures 
legitimate  in  time  of  peace  to  assure  the  execution  of  an  arbitral 


THE   CONFERENCE  481 

award  rendered  against  a  state  which  refuses  to  recognize  or 
execute  it  ; 

(g)  To  pass  upon  the  revocation  or  suspension  of  a  treaty  con- 
ckided  between  two  or  more  states  in  the  cases  designated  in  rules 
787,  788,  826  and  829; 

(h)  To  suspend  the  execution  of  a  treaty  of  peace  and  to  refer 
the  matter  to  the  Congress  whenever  it  may  consider  the  stipula- 
tions of  such  treaty  as  violating  the  principles  which,  according  to 
the  rules  enunciated  by  the  Congress,  govern  the  conclusion  of 
peace. 

PROCEDURE 

1241.  The  meeting  of  the  Conference  may  take  place  at  the 
request  of  one  of  the  states  of  the  union  which,  in  a  note  communi- 
cated through  diplomatic  channels,  shall  state  the  reasons  for  the 
desired  convocation  of  the  members.  Such  request  must  be  recog- 
nized as  well  founded  by  three  of  the  governments  of  the  states 
which  are  to  join  in  the  Conference. 

When  the  meeting  of  the  Conference  requested  by  one  of  the 
states  of  the  union  shall  be  approved  by  three  of  the  governments 
of  the  states  invited,  these  states  shall  determme  by  agreement  the 
program  for  the  Conference. 

1242.  When  the  meeting  of  the  Conference  shall  be  called  be- 
cause of  a  difficult}^  between  two  or  more  states  which,  not  having 
been  adjusted  by  peaceful  means,  threatens  to  cause  war,  the 
parties  in  dispute  shall  all  be  considered  defendants. 

1243.  When  the  parties  in  dispute  are  all  in  the  position  of 
defendants  before  the  Conference  it  is  the  duty  of  each  party  to 
place  at  the  disposal  of  the  Conference  all  the  documents  in  sup- 
port of  its  claim  and  those  which  may  be  required  by  the  Con- 
ference. In  the  case  of  good  offices  or  mediation  on  the  part  of 
third  powers,  they  must  fm-nish  the  relevant  papers  and  all  docu- 
ments necessary  to  acquaint  the  Conference  with  the  nature  and 
object  of  the  dispute  and  the  grounds  invoked  by  each  of  the  con- 
tending parties  in  order  that  an  intelligent  decision  may  be  reached. 

1244.  The  parties  called  before  the  Conference  shall  be  permitted 
to  present  their  own  arguments  and  to  take  part  in  the  proceedings 
of  the  Conference  by  appointed  representatives;  but  they  shall  not 
bo  entitled  to  a  vote. 


482  INTERNATIONAL  LAW  CODIFIED 

They  may  present  to  the  Conference  all  the  memorials  and  docu- 
ments calculated  to  strengthen  their  case,  so  long  as  the  assembly 
shall  not  have  declared  the  period  for  the  submission  of  documents 
closed. 

1245.  Any  decision  of  the  Conference,  whether  provisional  or 
final,  shall  be  reached  by  a  majority  of  votes,  each  state  represented 
and  each  delegate  to  the  Conference  possessing  one  vote. 

1246.  Every  decision  shall  be  drawn  up  in  writing  and  contain 
an  exact  enunciation  of  the  rules  of  law  on  which  it  is  based,  the 
grounds  for  the  application  of  such  rules,  and  a  clear  and  precise 
judgment. 

1247.  The  resolutions  of  the  Conference  shall  be  signed  by  all 
participating  members  who  have  not  been  excluded  from  it  for 
justifiable  reasons. 

Each  member  of  the  minorit}^  shall  have  the  right  to  state  the 
reasons  for  his  dissenting  vote  and  to  require  mention  thereof  in  the 
proceedings,  but  he  shall  not  have  the  right  to  refuse  to  sign  the 
award  or  resolution  adopted  by  the  majority. 

1248.  The  decision  of  the  Conference  shall  be  deemed  final  and 
it  shall  be  communicated  by  diplomatic  channels  to  all  the  member 
states  of  the  union  and  notified  to  the  interested  parties  upon 
whom  it  shall  thereupon  become  obligatory. 

SANCTION    OF   THE    DECISIONS   OF   THE    CONFERENCE 

1249.  The  Conference  may  assure  respect  for  its  decisions  by 
proposing  to  the  Congress,  by  a  resolution  based  upon  stated 
reasons,  the  use  of  coercive  measures  against  such  members  as  may 
refuse  to  execute  the  decision. 

1250.  The  behavior  of  any  state  which  might  decline  to  abide 
by  the  decisions  of  the  Conference  and  to  execute  the  orders  im- 
posed upon  it  would  be  deemed  censurable  and  contrary  to  the 
common  law  of  nations,  which  must  govern  the  states  constituting 
the  "  union  "  or  society ;  and  it  might  be  necessary  to  convoke  a  Con- 
gress to  prescribe  the  employment  of  appropriate  coercive  measures. 

We  do  not  deceive  ourselves  by  assuming  that  the  rules  we  propose  for  the 
rational  organization  of  international  society  can  at  present  be  accepted  and 
enforced.  It  will  require,  first  of  all,  a  complete  transformation  of  present 
conditions  and  a  gradual  restriction  and  final  and  complete  elimination  of  the 
preponderance  of  political  influence  in  international  relations.    It  will  be  neces- 


■J 


THE  CONraRENCE  4BS 

sary  for  public  opinion — which  is  the  manifestation  of  the  legal  conscience  of 
the  peoples  comprising  the  Magna  civitas,  formerly  suppressed,  but  whose  in- 
fluence upon  the  operation  of  international  society  is  constantly  increasing — 
to  become  preponderant.  It  will  be  necessary  for  peoples,  more  conscious  of 
their  respective  interests  and  legitimate  rights,  to  assert  their  solidarity.  It 
will  be  necessary,  so  to  speak,  for  the  legal  entities  constituting  the  Magna 
civitas  to  realize  clearly  that  law  and  justice,  and  not  private  interest  and  poli- 
tics, must  be  the  final  sovereign  of  the  world. 

Whoever  considers  conditions  from  a  lofty  point  of  view  must  agree  that 
the  life  of  nations  is  being  transformed  by  the  influence  of  new  ideas;  these  are 
limiting,  little  b}'  little,  the  preponderant  influence  of  politics,  which  will  be 
ultimately  eliminated,  since  ideas,  not  fa(;ts,  govern  the  world. 

Undoubtedly,  on  the  other  hand,  politics,  failing  to  base  their  proponderance 
upon  the  irresistible  and  mysterious  power  of  ideas  are  now  under  the  necessity 
of  appealing  to  force.  They  will  not  be  able  to  do  this  indefinitely.  The  result 
of  the  increasing  progress  of  science  is  that  ultimately  states  will  be  unable  to 
maintain  their  armaments  on  a  par  with  such  progress.  The  wonderful  discov- 
eries in  ballistics  and  of  more  powerful  weapons  of  attack,  which  make  quite 
useless  the  present  means  of  defense;  the  discouraging  progress  of  artillery 
which  reduces  to  naught  any  study  to  perfect  resistance  by  improving  the  con- 
struction of  ships;  new  and  more  powerful  explosives;  submarines,  dirigible 
balloons,  aeroplanes  and  other  powerful  means  of  destruction — all  this,  to  anj"^ 
thoughtful  person,  signifies  that  politics,  in  course  of  time,  will  have  to  recog- 
nize its  inability  to  stand  the  strain. 

At  the  present  writing,  August  26,  1908,  the  two  great  powers  which  by 
their  policy  seek  to  acquire  preponderance  upon  the  sea,  recognizing  the  diffi- 
culty of  maintaining  their  efforts,  have  attempted  to  reach  an  agreement. 
Having  failed  in  that  attempt,  they  are  induced  by  their  rivalry  to  excessive 
and  ever  increasing  expenditures.  Thus,  Great  Britain  plans  to  build  thirty 
ships  of  the  Dreadnought  type,  entailing  an  expenditure  of  $250,000,000  and 
may  be  obliged  to  have  recourse  to  a  loan  (Le  Matin,  August  23,  1908).  In 
Germany,  an  increase  of  taxes  of  500,000,000  marks  has  been  announced  to 
meet  new  naval  expenditures. 


TITLE  III 

EFFECTIVE  MEANS  OF  SETTLING  DIPTERENCES  BE- 
TWEEN STATES  AND  PREVENTING  LITIGATION 

OF    DIPLOMATIC    ACTION 

1251.  Whenever  there  arises  between  two  or  more  states  a 
difference  hkely  to  disturb  their  friendly  relations,  it  must  be 
deemed  a  common  duty  of  humanity  and  an  act  of  good  policy 
for  all  the  governments  of  the  states  of  the  international  society, 
and  for  each  of  them  in  particular,  to  make  use  of  all  the  means 
available  under  the  "common"  law  to  settle  the  difference  by 
diplomatic  action  and  thus,  if  possible,  avoid  litigation  or  recourse 
to  arms. 

The  true  mission  of  politics  and  diplomacy  .should  be  to  bring  about  the 
disappearance  of  all  ground  of  disagreement  between  the  states  of  the  in- 
ternational society  and  to  employ  any  honorable  means  calculated  to  settle 
differences  between  them  and  to  insure  the  maintenance  of  their  friendly 
relations. 

See  Fiore,  word  Alleanza  in  Digesto  italiano,  chap.  IV.  La  vera  missione 
della  diplornazia. 

This  principle  is  at  present  recognized  in  article  I  of  Convention  I  of  the 
Oeneral  Act  of  The  Hague  of  1907,  which  provides  as  follows: 

Article  I. — "  With  a  view  to  obviating  as  far  as  possible  recourse  to  force  in 
the  relations  between  states,  the  contracting  Powers  agree  to  use  their  best 
efforts  to  ensure  the  pacific  settlement  of  international  differences." 

The  proclamation  of  principles  made  by  the  forty-four  states  assembled  at 
The  Hague,  forming  the  preamble  of  the  convention  for  the  pacific  settlement 
of  international  disputes,  which  also  comprises  arbitral  procedure,  deserves 
most  careful  attention.    It  reads  thus: 

"Animated  by  the  sincere  desire  to  work  for  the  maintenance  of  general 
peace; 

Resolved  to  promote  by  all  the  efforts  in  their  power  the  friendly  settlement 
of  international  disputes; 

Recognizing  the  solidarity  uniting  the  members  of  the  society  of  civilized 
nations; 

Desirous  of  extending  the  empire  of  law  and  of  strengthening  the  apprecia- 
tion of  international  justice; 

Convinced  that  the  permanent  institution  of  a  Tribunal  of  Arbitration  ac- 
cessible to  all,  in  the  midst  of  independent  powers,  will  contribute  effectively 
to  this  result; 

484 


SETTLING    DIFFERENCES    BETWEEN    STATES  485 

Having  regard  to  the  advantages  attending  the  general  and  regular  organiza- 
tion of  the  procedure  of  arbitration; 

Sharing  the  opinion  of  the  august  initiator  of  the  International  Peace  Con- 
ference that  it  is  expedient  to  record  in  an  International  Agreement  the  princi- 
ple of  equity  and  right  on  which  are  based  the  security  of  States  and  the  wel- 
fare of  peoples ; 

Being  desirous,  with  this  object,  of  insuring  the  better  working  in  practice 
of  Commissions  of  Inquiry  and  Tribunals  of  Arbitration,  and  of  facilitating 
recourse  to  arbitration  in  cases  which  allow  of  a  summary  procedure; 

Have  deemed  it  necessary  to  revise  in  certain  particulars  and  to  complete 
the  work  of  the  First  Peace  Conference  for  the  pacific  settlement  of  interna- 
tional disputes." 

MEANS   DEEMED    EFFICACIOUS 

1252.  The  means  considered  efficacious  and  admitted  by  all  the 
states  which  signed  the  General  Act  of  the  Hague  Conference  of 
1907  are: 

(a)  Good  offices; 

(6)  Mediation; 

(c)  International  Commissions  of  Inquiry. 

.Concerning  these  and  other  matters,  there  exists  a  body 
of  rules  which  constitute  the  "common"  law  of  the  states  repre- 
sented in  the  Second  Hague  Conference  of  1907  and  signatory  of 
the  General  Act  of  October  18,  1907,  which  contains  the  different 
conventions  they  concluded.  Although  binding  on  all  the  signa- 
tory (i.  e.,  ratifying)  states,  these  rules  are  not  fully  reproduced 
in  this  work,  because  they  are  not  all  reconcilable  with  our  system, 
for  instance,  certain  rules  concerning  arbitration.  The  reader  will 
find,  however,  printed  in  italics,  a  verbatim  copy  of  such  of  the 
rules  as  are  not  opposed  to  our  principles.  There  are  fourteen 
conventions  and  each  is  divided  into  articles.  The  number  of  the 
convention  will  be  cited  in  connection  with  a  textual  reproduction 
of  the  articles, — using  our  own  numeration. 

GOOD   OFFICES 

1253.  Good  offices  consist  in  the  attempt  of  a  friendly  power 
to  facilitate  negotiations  between  two  or  more  states  in  contro- 
versy. 

The  good  offices  of  a  friendly  power  may  be  required  by 
either  one  of  the  states  in  controversy,  when  they  have  failed 
through  diplomatic  negotiations  to  reach  an  agreement  and  there 


486  INTERNATIONAL   LAW    CODIFIED 

is  danger  of  their  disagreement  becoming  so  serious  as  to  disturb 
their  friendly  relations. 

1254.  Any  government  of  the  states  of  the  international  soci- 
ety may,  without  being  requested,  tender  its  good  offices  to 
the  states  in  controversy,  for  the  purpose  of  exercising  its  moral 
influence  toward  reconciUng  them  and  endeavoring  to  bring  about 
an  amicable  agreement  or  an  honorable  compromise. 

This  rule,  proposed  in  the  preceding  editions  of  the  present  work  (3d  ed., 
§  1118)  is  thus  formulated  in  article  3  of  Convention  I  of  the  General  Act  of 
the  Hague  Conference  of  October  18,  1907: 

"  The  Contracting  Powers  deem  it  expedient  and  desirable  that  one  or  more 
powers,  strangers  to  the  dispute,  should,  on  their  own  initiative  and  as  far  as 
circumstances  may  allow,  oflfer  their  good  offices  or  mediation  to  the  states  at 
variance. 

Powers  strangers  to  the  dispute  have  the  right  to  offer  good  offices  or  media- 
tion even  during  the  course  of  hostilities. 

The  exercise  of  this  right  can  never  be  regarded  by  either  of  the  parties  in 
dispute  as  an  unfriendly  act." 

1255.  Refusal  on  the  part  of  a  government  to  accept  good 
offices  proposed  by  the  government  of  the  opposing  state,  or  prof- 
fered by  a  friendly  power  on  its  own  initiative  will  in  itself  raise 
a  grave  presumption  that  that  government  does  not  desire  to 
reach  an  amicable  arrangement.  Such  refusal  virtually  consti- 
tutes a  breach  of  political  etiquette. 

1256.  Good  offices  voluntarily  tendered  by  a  power  not  inter- 
ested in  the  difference  should  not  be  declined  without  good  reasons. 
If  accepted  by  the  states  in  controversy,  they  must  communicate 
and  furnish  to  such  power  all  the  documents  and  notes  relative 
to  the  matter  in  dispute  and  whatever  may  be  necessary  to  eluci- 
date the  case.  They  must  also  advance  their  arguments  in  support 
of  their  respective  claims. 

1257.  The  tender  of  good  offices  cannot  be  considered  by  any  of 
the  states  between  which  a  difference  has  arisen  as  improper  or 
as  an  unfriendly  act  or  undue  interference. 

1258.  The  government  that  has  proffered  its  good  offices  must 
act  in  regard  to  the  two  states  in  controversy  with  absolute  im- 
partiality and  moderation  and  use  its  moral  influence  to  facilitate 
conciliation  and  to  effect  an  honorable  compromise  of  the  disputed 
points;  but  it  may  not  expect  that  either  state  shall  accept  its 
proposals  to  the  prejudice  of  its  dignity  or  honor. 

The  rules  set  forth  are  the  same  as  those  in  preceding  editions. 


SETTLING    DIFFEKENCES    BETWEEN    STATES  487 

OF   MEDIATION 

1269.  Mediation  is  the  act  of  a  friendly  state  which  interposes 
between  two  states  between  which  a  difference  has  arisen,  with 
a  view  to  composing  it  and  reestabUshing  good  relations  between 
them. 

The  states  between  which  a  difference  has  arisen  may  pro- 
pose to  invest  one  or  more  friendly  states,  strangers  to  the  ques- 
tion, with  power  to  interpose  as  amiahles  compositeurs  or  mediators 
in  the  settlement  of  the  controversy. 

The  privilege  to  proffer  mediation  inheres  in  every  state  stranger 
to  the  difference. 

1260.  The  mediation  proposed  can  never  he  regarded  by  either  of 
the  states  in  dispute  as  an  unfriendly  act. 

General  Act  of  the  Hague  Conference.  Convention  for  the  pacific  settle- 
ment of  international  disputes  of  October  18,  1907,  art.  3,  last  paragraph. 

1261.  The  part  of  the  mediator  consists  in  reconciling  the  opposing 
claims  and  appeasing  the  feelings  of  resentment  which  may  have  arisen 
between  the  states  in  controversy. 

Article  4  of  that  Convention. 

1262.  It  is  the  duty  of  the  mediating  state,  whenever  mediation 
has  been  requested  or  proffered  and  accepted  by  the  states  in 
controversy,  to  ascertain  the  precise  points  and  matters  in  dis- 
pute, the  negotiations  entered  into  and  still  pending,  and  all  the 
evidentiary  documents,  etc.,  likely  to  throw  light  upon  the  case. 

1263.  It  is  incumbent  upon  the  states  in  controversy,  which 
have  requested  or  accepted  mediation,  candidly  to  communicate 
all  information  to  the  mediator,  so  that  he  may  properly  fulfill  his 
mission. 

After  having  accepted  mediation,  it  must  be  deemed  unfair  on 
the  part  of  either  state  to  endeavor  to  mislead  the  mediator  by 
unjustified  reticence. 

1264.  It  must  be  deemed  the  mediator's  principal  duty  to  con- 
sider in  good  faith  and  impartially  the  arguments  of  each  state; 
to  refrain  from  using  his  moral  influence  in  favor  of  either;  to  act, 
not  as  a  judge  or  arbitrator,  but  as  a  conciliator,  an  impartial 
friend,  a  skillful  and  prudent  composer  of  differences,  seeking  to 
bring  about  a  reasonal)le  arrangement  between  the  contending 


488  INTERNATIONAL   LAW    CODIFIED 

states  without  in  any  way  depriving  them  of  their  full  liberty  to 
accept  or  reject  the  settlement  proposed. 

1265.  The  functions  of  the  mediator  are  at  an  end  when  once  it  is 
declared,  either  by  one  of  the  parties  to  the  dispute  or  hij  the  mediator 
himself,  that  the  means  of  reconciliation  proposed  by  him  are  not 
accepted. 

Article  5  of  the  Convention  cited. 

1266.  Good  offices  and  mediation  undertaken  either  at  the  request 
of  the  parties  in  dispute  or  on  the  initiative  of  Powers  strangers  to  the 
dispute  have  exclusively  the  character  of  advice,  and  never  have  binding 
force. 

Article  6  of  the  Convention  cited. 

1267.  The  Powers  which  have  concluded  the  Hague  Convention  of 
1907  are  agreed  in  recommending  the  application,  when  circumstances 
allow,  of  special  mediation  in  the  following  form: 

In  case  of  a  serious  difference  endangering  peace,  the  states  at 
variance  choose  respectively  a  Power  to  which  they  entrust  the  mission 
of  entering  into  direct  communication  with  the  Power  chosen  on 
the  other  side,  unth  the  object  of  preventing  the  rupture  of  pacific 
relations. 

For  the  period  of  this  mandate,  the  term  of  which,  unless  otherunse 
stipulated,  cannot  exceed  thirty  days,  the  States  in  dispute  cease  from 
all  direct  communication  on  the  subject  of  the  dispute,  which  is  re- 
garded as  referred  exclusively  to  the  mediating  Powers,  which  must 
use  their  best  efforts  to  settle  it. 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are 
charged  with  the  joint  task  of  taking  advantage  of  any  opportunity 
to  restore  peace. 

Article  8  of  the  Convention  cited. 

OF   THE   INTERNATIONAL   COMMISSION    OF   INQUIRY 

1268.  In  disputes  of  an  international  nature  involving  neither 
honor  nor  vital  interests,  and  arising  from  a  difference  of  opinion  on 
points  of  fact,  the  contracting  Powers  deem  it  expedient  and  desirable 
that  the  parties  who  have  not  been  able  to  come  to  an  agreement  by 
means  of  diplomacy,  should,  as  far  as  circumstances  allow,  institute 


SETTLING    DIFFERENCES    BETWEEN    STATES  489 

an  international  co7nmission  of  inquiry,  to  facilitate  a  solution  of  these 
disputes  by  elucidating  the  facts  by  means  of  an  impartial  and  con- 
scientious investigation.    {Art.  9.) 

The  provisions  governing  the  international  Commission  of  Inquiry  con- 
stitute the  "common"  law  of  th(;  forty-four  states  assembled  at  The  Hague, 
which  have  signed  and  ratified  the  Convention  of  October  18,  1907,  for  the 
pacific  settlement  of  international  disputes.  They  are  consequently  just  as 
binding  upon  these  states  as  any  rule  of  positive  law.  For  that  reason  the 
full  text  of  the  convention  is  given  herein. 

N.  B.  The  consecutive  numbering  of  the  rules  has  been  preserved,  indicating 
throughout  the  articles  of  the  convention  to  which  the  rules  correspond. 

1269.  International  commissions  of  inquiry  are  constituted  by 
special  agreement  between  the  parties  in  dispute. 

The  inquiry  convention  defines  the  facts  to  be  examined;  it  deter- 
mines the  mode  and  time  in  which  the  comynission  is  to  be  formed  and 
the  extent  of  the  powers  of  the  commissioners. 

It  also  determines,  if  there  is  need,  where  the  commission  is  to  sit, 
and  whether  it  may  remove  to  another  place,  the  language  the  com- 
mission shall  use  and  the  languages  the  use  of  which  shall  be  authorized 
before  it,  as  well  as  the  date  on  which  each  party  must  deposit  its 
statement  of  facts,  and,  generally  speaking,  all  the  conditions  upon 
which  the  parties  have  agreed. 

If  the  parties  consider  it  necessary  to  appoint  assessors,  the  con- 
vention of  inquiry  shall  determine  the  mode  of  their  selection  and  the 
extent  of  their  j)owers.     {Art.  10.) 

1270.  //  the  inquiry  convention  has  not  determined  where  the 
commission  is  to  sit,  it  will  sit  at  The  Hague. 

The  place  of  meeting,  oiice  fixed,  cannot  be  altered  by  the  commission 
except  with  the  assent  of  the  parties. 

If  the  inquiry  commission  has  not  determined  what  languages 
are  to  be  employed,  the  qu£stion  shall  be  decided  by  the  comynission. 
{Art.  11.) 

1271.  Unless  an  undertaking  is  rnade  to  the  contrary,  commissions 
of  inquiry  shall  be  formed  by  choosing  the  members  from  among  the 
list  of  members  appointed  as  members  of  the  permanent  Court  of  Ar- 
bitration. 

The  commission  selects  its  President  from  among  its  members. 
{Art.  12.) 

1272.  Should  one  of  the  commissioners  or  one  of  the  assessors,  if 
any,  either  die  or  resign,  or  be  unable  for  any  reason  whatever  to  dis- 


490  INTERNATIONAL    LAW    CODIFIED 

charge  his  functions,  the  same  procedure  is  followed  for  filling  the 
vacancy  as  was  followed  for  appointing  him..    {Art.  13.) 

1273.  The  parties  are  entitled  to  appoint  special  agents  to  attend 
the  convention  of  inquiry,  whose  duty  it  is  to  represent  them  and  to 
act  as  intermediaries  between  them  and  the  commission. 

They  are  further  authorized  to  engage  counsel  or  advocates,  ap- 
pointed by  themselves,  to  state  their  case  and  uphold  their  interests 
before  the  commission.    (Art.  14-) 

1274.  The  International  Bureau  of  the  Permanent  Court  of  Arbi- 
tration acts  as  registry  for  the  commissions  which  sit  at  The  Hague, 
and  shall  place  its  offices  and  staff  at  the  disposal  of  the  contracting 
Powers  for  the  use  of  the  commission  of  inquiry.    {Art.  15.) 

1275.  //  the  commission  meets  elsewhere  than  at  The  Hague,  it 
appoints  a  secretary-general,  whose  office  serves  as  registry. 

It  is  the  function  of  the  registry,  under  the  control  of  the  President, 
to  make  the  necessary  arrangements  for  the  sittings  of  the  commission, 
the  preparation  of  the  minutes,  and,  ivhile  the  inquiry  lasts,  for  the 
charge  of  the  archives,  which  shall  subsequently  be  transferred  to  the 
International  Bureau  at  The  Hague.    {Art.  16.) 

1276.  In  order  to  facilitate  the  constitution  and  working  of  com- 
missions of  inquiry,  the  following  rules,  which  shall  be  applicable 
to  the  inquiry  procedure  in  so  far  as  the  parties  do  not  adopt  other 
rules,  are  recommended.    {Art.  17.) 

1277.  The  commission  shall  settle  the  details  of  the  procedure  not 
covered  by  the  special  inquiry  convention  or  the  present  Convention, 
and  shall  arrange  all  the  formalities  required  for  dealing  with  the 
evidence.     {Art.  18.) 

1278.  On  the  inquiry  both  sides  must  be  heard. 

At  the  dates  fixed,  each  party  communicates  to  the  commission  and 
to  the  other  party  the  statements  of  facts,  if  any,  and  in  all  cases,  the 
instruments,  papers,  and  documents  ivhich  it  considers  useful  for 
ascertaining  the  truth,  as  well  as  the  list  of  witnesses  and  experts  whose 
evidence  it  wishes  to  be  heard.    {Art.  19.) 

1279.  The  commission  is  entitled,  with  the  assent  of  the  Powers, 
to  move  temporarily  to  any  place  where  it  considers  it  may  be  usefid 
to  have  recourse  to  this  means  of  inquiry  or  to  send  one  or  more  of  its 
members.  Permission  must  be  obtained  from  the  state  on  whose  terri- 
tory it  is  proposed  to  hold  the  inquiry.    {Art.  20.) 

1280.  Every  investigation,  arid   every   examination  of  a  locality 


SETTLING    DIFFERENCES    BETWEEN    STATES  491 

must  he  made  in  the  presence  of  the  agents  and  counsel  of  the  parties 
or  after  they  have  been  duly  summoned.    (Art.  21.) 

1281.  The  commission  is  entitled  to  ask  from  either  party  for  such 
explanation  and  information  as  it  considers  necessary.    (Art.  22.) 

1282.  The  parties  must  supply  the  commission  of  inquiinj,  as  f idly 
as  possible,  with  all  7neans  and  facilities  necessary  to  enable  it  to 
thoroughly  uiider stand  the  facts  in  question.  Likewise  they  must 
make  use  of  all  means  at  their  disposal  under  their  municipal  law  to 
insure  the  appearance  of  the  witnesses  or  experts  who  are  in  their 
territory  and  have  been  summoned  before  the  commission. 

If  the  untnesses  or  experts  are  unable  to  appear  before  the  commis- 
sion, the  parties  will  arrange  for  their  evidence  to  be  taken  before  the 
qualified  officials  of  their  own  coimtry.     (Art.  23.) 

1283.  For  all  notices  to  be  served  by  the  commission  in  the  territory 
of  a  third  contracting  Power,  the  commission  shall  apply  direct  to  the 
government  of  the  said  Power.  The  same  rule  applies  in  the  case  of 
procuring  evidence  from  witnesses  residing  in  foreign  territory. 

Such  requests  are  to  be  executed  by  the  Power  to  which  they  are  di- 
rected so  far  as  the  means  at  its  disposal  and  its  laws  will  permit. 
They  cannot  be  rejected  unless  the  Power  applied  to  considers  com- 
pliance theremth  as  prejudicial  to  its  sovereign  rights  or  its  safety. 

The  commission  will  equally  be  always  entitled  to  act  through  the 
Power  on  whose  territory  it  meets.    {Art.  24-) 

1284.  The  witnesses  and  experts  may  be  summoned  at  the  request 
of  the  parties  in  controversy  or  by  the  commission  on  its  own  motion, 
but  in  every  case  through  the  government  of  the  State  in  whose  territory 
it  tnay  be  assembled. 

The  witnesses  are  heard  in  succession  and  separately,  in  the  pres- 
ence of  the  agents  and  counsel,  and  in  the  order  determined  by  the 
commission.     (Art.  25.) 

1285.  The  examination  of  witnesses  is  conducted  by  the  president. 
The  members  of  the  commission  may,  however,  ask  any  witness 

such  questions  as  they  consider  likely  to  elucidate  and  complete  the 
evidence,  or  obtain  inforination  on  any  point  concerning  the  witness 
that  may  be  pertinent  and  necessary  to  disclose  the  truth. 

The  agents  and  counsel  of  the  parties  in  controversy  may  not  in- 
terrupt the  witness  when  he  is  making  his  statement,  nor  put  any  direct 
question  to  him,  but  they  may  ask  the  president  to  put  such  additional 
questions  to  the  witness  as  they  may  deem  expedient.     (Art.  26.) 


492  International  law  codified 

1286.  The  witness  must  give  his  evidence  without  being  allowed  to 
read  any  written  draft.  He  may,  however,  be  permitted  by  the  presi- 
dent to  consult  notes  or  documents  if  the  nature  of  the  facts  referred  to 
necessitates  their  employment.     {A^'t.  27.) 

1287.  A  minute  of  the  evidence  of  the  witness  is  drawn  up  forthwith 
and  read  to  the  witness.  The  latter  may  make  such  alterations  and 
additions  as  he  thinks  necessary,  ivhich  will  be  recorded  at  the  end  of  his 
statement. 

When  the  whole  of  his  statement  has  been  read  to  the  uritness,  he  is 
asked  to  sign  it.    {Art.  28.) 

1288.  The  agents  are  authorized,  in  the  course  of  or  at  the  close  of 
the  inquiry,  to  present  in  writing  to  the  commission  and  to  the  other 
party  such  statements,  requisitions,  or  summaries  of  the  facts  as  they 
consider  useful  for  ascertaining  the  truth.    {Art.  29.) 

1289.  The  commission  considers  its  decisions  in  private  and  the 
proceedings  are  secret. 

All  questions  are  decided  by  a  majority  of  the  members  of  the  com- 
mission. 

If  a  member  declines  to  vote,  the  fact  must  be  recorded  in  the  min- 
utes.     {Art.  30.) 

1290.  The  sittings  of  the  commission  are  not  public,  nor  the  min- 
utes and  docfiiments  pertaining  to  the  inquiry  published  except  by 
virtu£  of  a  decision  of  the  commission  made  with  the  consent  of  the 
parties  in  controversy.    {Art.  31.) 

1291.  After  the  parties  have  presented  all  the  explanations  and 
evidence,  and  the  witnesses  have  all  been  heard,  the  president  declares 
the  inquiry  terminated,  and  the  commission  adjourns  to  deliberate 
and  to  draw  up  its  report.    {Art.  32.) 

1292.  The  report  is  signed  by  all  the  members  of  the  commission. 
If  one  of  the  members  refuses  to  sign,  the  fact  is  mentioned,  but  the 

validity  of  the  report  is  not  affected.    {Art.  33.) 

1293.  The  report  of  the  commission  is  read  at  a  public  sitting,  the 
agents  and  counsel  of  the  parties  in  controversy  being  present  or  duly 
summoned. 

A  copy  of  the  report  is  given  to  each  party.    {Art.  34-) 

1294.  The  report  of  the  commission  is  limited  to  a  statement  of 
facts,  and  has  in  no  way  the  character  of  an  award.  It  leaves  to  the 
parties  in  controversy  entire  freedom  as  to  the  effect  to  be  given  to  the 
statement.    {Art.  35.) 


SETTLING   DIFFERENCES   BETWEEN    STATES  493 

1295.  Each  party  pays  its  own  expenses  and  an  equal  share  of  the 
expenses  incurred  by  the  conwiiss^ion.    (Ai^t.  36.) 

1296.  The  rules  relating  to  international  commissions  of  inquiry^ 
haning  been  sanctioned  by  the  special  convention  which  is  part  of  the 
General  Act  of  the  second  Hague  Conference,  have,  with  respect  to  all 
the  states  which  subscribed  the  convention,  the  authority  of  their  "com- 
ynon^'  law,  and  they  must  all  recognize  its  binding  force. 

1297.  International  commissions  of  inquiry,  in  addition  to  the  cases 
contemplated  in  the  engagements  assumed  by  the  States  signatory  of 
the  Convention  of  October  18,  1907,  may  be  instituted  by  virtue  of  a 
resolution  of  the  Conference,  whenever  such  measure  may  be  deemed 
expedient. 

They  may  further  be  instituted  by  an  award  of  the  Permanent 
Court  of  Arbitration  at  The  Hague,  which,  having  jurisdiction  to 
decide  a  dispute  upon  the  points  indicated  in  the  compromis,  deems  it 
expedient  to  ascertain  certain  facts  in  order  to  be  able  to  reach  a  proper 
decision. 

1298.  Whenever  the  Commission  of  Inquiry  irmy  be  instituted 
by  a  resolution  of  the  Conference  or  of  the  Hague  Court  of  Arbitration, 
the  resolution  vnll  define  the  facts  thai  are  to  be  investigated  and  will 
regulate  all  the  particulars  contemplated  in  Article  1269,  supra. 


TITLE  IV 
OF  INTERNATIONAL  ARBITRATION 

EFFICACY   OF   ARBITRATION 

1299.  Arbitration  must  be  deemed  the  most  equitable  and 
effective  means  of  settling  questions  of  a  legal  nature,  especially 
those  of  interpretation  and  application  of  international  conven- 
tions,— disagreements  which  diplomacy  cannot  adjust. 

It  is  imperatively  necessary  that  the  empire  of  law  and  institu- 
tions of  a  legal  order  be  fostered  and  maintained  by  the  states  of 
the  international  society. 

Propaganda  in  favor  of  arbitration,  as  an  equitable  and  effective  means  of 
•settling  disputes  and  of  eliminating  war,  has  been  the  principal  object  of  the 
movements  of  the  last  century,  and  the  common  aspiration  of  various  European 
and  American  associations  organized  to  substitute  the  use  of  armed  force  by 
a  judicial  institution  capable  of  solving  such  differences  as  may  exist  between 
states.  See  supra,  Introduction,  and  the  numerous  works  on  the  subject,  of 
which  the  following  merit  special  mention,  viz.: 

Merignhac,  L'arbitrage  international;  Deschamps,  Essais  sur  V organisation 
de  l'arbitrage  international;  Pradier-Fodere,  Traite  de  droit  international,  v.  VI, 
§§  2602-2630;  Oppenheim,  International  laio,  v.  II,  §§  12  et  seq.;  Bonfils- 
Fauchille,  §§  944-969;  Darby,  International  arbitration.  For  the  actual  prac- 
tice and  operation  of  arbitration,  see  Moore,  History  and  Digest  of  the  arbi- 
trations to  which  the  United  States  has  been  a  party,  and  Lapradelle  and 
Politis,  Recueil  des  arbitrages  inter nationaux. 

The  Institute  of  International  Law  discussed  this  question  at  length  in  its 
sessions  at  The  Hague  in  1875  and  at  Zurich  of  September  12,  1877,  and  has 
even  drafted  a  plan  for  regulating  the  procedure  of  arbitration. 

The  principle  of  arbitration  has  received  serious  and  widespread  recognition, 
the  forty-four  states  assembled  at  The  Hague  in  1907  having  admitted  its 
value.  It  should  be  noted,  however,  that  these  states,  while  recognizing,  in 
the  preamble  of  Convention  I,  that  the  permanent  institution  of  an  arbitral 
jurisdiction  may  prove  efficacious  in  extending  the  domain  of  law  and  fortify- 
ing the  sentiment  of  international  justice,  yet  they  did  not  assert  that  submis- 
sion to  arbitral  jurisdiction  should  be  considered  compulsory  upon  the  states 
of  the  international  society,  and  furthermore,  they  materially  modified  its 
usefulness  by  vague  restrictions.    Article  38  reads: 

"  In  questions  of  a  legal  nature,  and  especially  in  the  interpretation  or  appli- 
cation of  international  conventions,  arbitration  is  recognized  by  the  contract- 
ing Powers  as  the  most  effective,  and,  at  the  same  time,  the  most  equitable 
means  of  settling  disputes  which  diplomacy  has  failed  to  settle. 

494 


INTERNATION.U.  ABBITKATION  495 

Consequently,  it  would  be  desirable  that,  in  disputes  concerning  the  above 
mentioned  questions,  the  contracting  Powers  should,  if  the  case  arose,  have 
recourse  to  arbitration  in  so  far  as  circumstances  permit." 


OBLIGATORY   CHARACTER   OF   ARBITRATION 

1300.  Submission  to  arbitration  furnishes  evidence  of  the  good 
faith  of  the  states  in  controversy,  and  even  though  it  cannot  be 
regarded  altogether  as  a  moral  duty,  it  ought  to  be  declared  by  the 
Congress  as  a  legal  duty  of  the  states  of  the  international  society 
in  all  cases  in  which,  by  the  nature  of  the  dispute,  arbitration  can- 
not be  regarded  as  inappropriate. 

1301.  Submission  to  arbitration  shall  be  conventional  or  obliga- 
tory. 

The  former  originates  in  that  clause  of  a  treaty  by  which  the 
parties  have  agreed  to  refer  to  arbitration  any  disputes  relative  to 
the  interpretation  or  application  of  the  treaty;  or  from  a  special 
treaty  of  arbitration  concluded  by  the  parties  in  dispute  by  which 
they  have  agreed  to  submit  it  to  a  court  of  arbitration;  or  it  may 
originate  in  a  general  treaty  of  arbitration  under  which  the  parties 
have  mutually  agreed  to  submit  to  arbitration  the  settlement  of 
any  dispute  of  a  legal  nature  that  may  arise  between  them. 

The  latter  derives  its  obligatory  character  from  a  rule  laid  down 
by  the  Congress,  or  from  a  decision  of  the  Conference  which  de- 
clares arbitration  compulsory  under  certain  circumstances  of  fact 
which  determine  the  application  of  the  general  principles  adopted 
by  the  Congress  concerning  the  obligation  to  arbitrate,  or  refers 
the  parties  to  the  arbitral  j  urisdiction  in  conformity  with  its  attri- 
butes in  cases  (c)  and  (e)  of  rule  1240. 

Considering  that,  in  principle,  arbitration  must  be  regarded  as  the  most 
equitable  and  effective  means  of  settling  disputes  of  a  legal  nature  which  may 
arise  between  states,  it  appears  manifestly  desirable  to  declare  it  compulsory 
in  all  cases  where  the  matter  in  dispute  may  be  the  object  of  a  compromise, 
and  ncjt  to  leave  it  to  the  voluntary  choice  of  the  parties  in  controversy  to 
decide  whether  or  not  they  shall  submit  to  arbitration. 

Inasmuch  as  the  prevailing  international  sentiment  is  highly  favorable  to 
the  suppression  of  war  as  much  as  possible  and  to  the  substitution  of  arbitra- 
tion therefor,  it  must  be  recognized  that  this  measure  will  become  effective 
only  when  submission  to  arbitral  jurisdiction  is  made  compulsory.  (Compare 
Inlrofluclion.) 

When  states,  in  their  general  treaties  of  arbitration,  include  a  reservation 
Huch  as  is  formulated  in  some  of  the  thirty-three  treaties  of  that  kind  already 
concluded,  namely,  that  all  disputes  of  a  legal  nature  shall  be  submitted  to 


496  INTERNATIONAL  LAW  CODIFIED 

arbitration,  provided,  however,  that  neither  the  vital  interests,  nor  the  inde- 
pendence, nor  the  honor  of  either  of  the  states  in  controversy  are  involved,  and 
that  it  must  be  left  for  the  states  themselves  to  decide  whether  or  not  the  res- 
ervation is  applicable,  every  one  understands  that  submission  to  arbitration 
depends  entirely  on  the  good  faith  of  the  contracting  parties. 

1302.  When  the  parties  in  dispute  are  unable  to  decide  whether 
the  difference  existing  between  them  can,  by  reason  of  its  nature 
and  subject-matter,  be  submitted  to  arbitration,  the  final  decision 
of  its  justiciability  must  be  left  to  the  Conference. 

1303.  When  the  Conference  finds  that  the  matter  in  dispute 
is  justiciable  by  arbitration,  its  decision  should  be  accepted  and 
the  states  in  controversy  should  be  required  to  submit  to  arbitra- 
tion. 

When,  on  the  contrary,  the  Conference  finds  that  the  object 
of  the  dispute  is  complex  and  partakes  both  of  a  legal  and  political 
nature,  it  may  take  upon  itself  the  right  to  decide. 

Nevertheless,  should  the  case  involve  questions  of  fact,  the  Con- 
ference could  refer  the  settlement  of  such  questions  to  arbitrators, 
in  order  later  to  avail  itself  of  their  finding  in  the  decision  of  the 
principal  and  fundamental  question  held  in  reserve. 

1304.  The  Congress  must  determine  what  matters  must  be 
regarded  as  obligatory  for  submission  to  arbitration  on  the  part 
of  the  states  of  the  international  society,  without  power  of  any 
reservation  on  their  part. 

In  cases  not  specified,  when  one  of  the  parties  in  dispute  desires 
to  submit  to  arbitration  while  the  other  declines  to  do  so,  the  will- 
ing party  may  send  to  the  International  Office  at  The  Hague  a 
note  containing  a  declaration  of  its  willingness  to  submit  to  arbi- 
tration. 

The  International  Office  will  communicate  the  declaration  to  the 
other  party. 

If  the  proposition  to  submit  to  arbitration  should  not  be  ac- 
cepted, the  requesting  parties  could  refer  the  difficulty  to  the 
Conference,  which  would  decide  whether  or  not  the  case  ought  to 
be  referred  to  the  Tribunal  of  Arbitration,  and  on  an  affirmative 
decision  to  that  effect  arbitration  should  be  made  obligatory. 

This  rule  is  based  in  part  on  those  proposed  in  our  2d  edition  (1898,  arts. 
1069-1070),  and  in  part  on  the  proposition  advanced  at  the  Conference  of 
1907  by  the  delegates  from  Peru  and  China;  it  was  accepted  and  added  to 
article  27  of  the  Convention  on  arbitral  justice  signed  at  the  Conference  of 
1899.    This  article,  thus  modified,  became  article  48  of  the  Convention  on  the 


INTERNATIONAL    ARBITRATION  497 

same  subject  drawn  up  by  the  Conference  of  October  18,  1907.     See  that 
article,  paragraphs  3  and  4. 

1305.  It  is  the  duty  of  the  states  tliat  have  endorsed  the  principle 
of  arbitration  to  agree  upon  the  rules  which  must  govern  the  ob- 
ligatory character  of  arbitral  justice,  in  order  thus  to  make  possible 
the  conclusion  of  a  universal  Convention  of  arbitration,  and  also 
to  prevent  the  obligation  to  arbitrate  as  well  as  the  essential  ele- 
ments of  the  treaty  from  being  violated  or  rendered  nugatory  by 
the  reservations  of  the  states  in  controversy.  Otherwise  arbitral 
justice  will  be  unable  to  fulfill  its  high  mission  for  the  common 
welfare  of  all  peoples. 

The  long-discussed  question  of  obligatory  arbitration  is  in  a  fair  way  of 
being  solved  in  a  manner  satisfactory  to  all  those  who  have  been  seeking  as 
far  as  possible  to  substitute  arbitral  justice  for  war  in  the  settlement  of  in- 
ternational disputes.  The  progress  made  since  the  first  Conference  of  1899  is 
noteworthy.  At  that  time  the  proposition  to  endorse  the  principle  of  obliga- 
tory arbitration  was  opposed  and  defeated.  The  states  there  represented 
merely  reserved  to  themselves  the  right  of  concluding  with  one  another  general 
treaties  of  arbitration  with  a  view  to  making  the  measure  obligatory  in  certain 
cases.  (Art.  19  of  the  Convention  for  the  pacific  settlement  of  international 
disputes,  title  IV.)  No  treaties  of  that  kind  were  concluded  until  the  signature 
of  the  general  treaty  of  arbitration  of  October  14,  1903,  between  France  and 
Great  Britain,  after  which  nearly  all  the  great  Powers  followed  this  example 
and  successively  concluded  general  treaties  of  arbitration.  These  numbered 
si.xty  in  April,  1908.  Italy  has  concluded  nine:  with  France  (December  25, 
1903);  Great  Britain  (February  1,  1904);  Switzerland  (November  16,  1904); 
Peru  (April  IS,  1905);  Portugal  (May  11,  1905);  Denmark  (December  16, 
1905);  Mexico  (October  16,  1907);  Argentine  Repubhc  (October  16,  1907); 
and  the  United  States  (March  28,  1908). 

In  the  recent  Conference  of  1907,  the  proposition  to  conclude  a  general 
treaty  by  which  the  states  would  agree  to  submit  to  arbitration  any  dispute  of 
a  legal  nature,  was  adopted  with  certain  reservations  in  the  sitting  of  October  5, 
1907,  by  the  delegates  of  thirty-five  states.  Only  five  voted  against  the 
proposition  and  four  abstained  from  voting.  The  whole  scheme  of  obligatory 
arbitration  which,  besides  the  general  formula,  specified  the  cases  in  which  the 
obligation  was  established  without  reservation,  was  voted  by  32  states;  but 
owing  to  the  lack  of  complete  agreement  the  final  solution  of  the  question  was 
postponed. 

At  any  rate,  it  is  especially  noteworthy  that  the  obligation  of  arbitration 
being  admitted  in  principle,  the  question  may  likewise  be  considered  settled 
in  principle.  It  therefore  seems  rea.sonable  to  assume  that  in  one  of  the  future 
ronf('renc(!S  of  states  of  fh(>  international  society,  a  general  treaty  of  obligatory 
arbitration  will  be  finally  concluded. 

The  following  is  the  text  of  the  declaration  voted  in  the  sitting  of  October  16, 
1907: 

"  The  Conference  is  unanimous: 

(1)  In  admitting  the  principle  of  compulsory  arbitration; 

(2)  In  declaring  that  certain  disputes,  in  particular  those  relating  to  the 


498  INTERNATIONAL   LAW   CODIFIED 

interpretation  and  application  of  the  provisions  of  international  agreements, 
may  be  submitted  to  compulsory  arbitration  without  restriction. 

Finally,  it  is  unanimous  in  proclaiming  that,  although  it  has  not  yet  been 
found  feasible  to  conclude  a  convention  in  this  sense,  nevertheless  the  diver- 
gencies of  opinion  which  have  come  to  light  have  not  exceeded  the  bounds  of 
judicial  controversy,  and  that,  by  working  together  during  the  past  four 
months,  the  collected  Powers  not  only  have  learned  to  understand  one  another 
and  to  draw  closer  together,  but  have  succeeded  in  the  course  of  this  long  col- 
laboration in  evolving  a  very  lofty  conception  of  the  common  welfare  of  hu- 
manity." 

1306.  In  view  of  the  fact  that  in  order  to  estabhsh  the  reign  of 
law  in  the  international  society,  it  must  be  deemed  a  legal  duty  for 
all  the  states,  members  thereof,  to  submit  all  disputes  of  a  legal 
nature  to  arbitration,  while  in  the  general  treaty  of  obligatory 
arbitration  there  would  be  specified  the  cases  in  which  the  parties 
in  controversy  should  submit  to  arbitration  without  reservation, 
the  enumeration  of  the  treaty  should  be  considered  as  indicative, 
not  as  limitative. 

It  will,  therefore,  always  be  optional  for  one  of  the  litigating 
parties  in  a  case  not  contemplated  in  the  treaty  of  obligatory  arbi- 
tration, to  announce  through  diplomatic  channels  its  intention  to 
submit  the  dispute  to  an  arbitral  award,  and  in  such  case  rule  1304 
is  to  be  applied.  l 

1307.  It  will  be  considered  as  an  unwarranted  refusal  to  submit 
to  arbitration: 

(a)  For  one  of  the  states  in  controversy  not  to  designate  the 
arbitrator  or  arbitrators  in  conformity  with  the  stipulations  of  the 
^^  com'promisy 

(h)  For  a  state,  in  the  event  of  a  regular  and  well-founded  chal- 
lenge by  its  opponent,  in  accordance  with  rule  1315,  to  the  arbi- 
trator named  by  it,  to  refuse  satisfactorily  to  overcome  the  ob- 
jection, especially  by  not  naming  a  new  arbitrator  in  lieu  of  the 
one  opposed. 

(c)  For  a  state  in  controversy,  when  the  arbitrators  appointed 
have  been  unable  to  agree  upon  a  third  arbitrator  or  umpire, 
not  to  accept  any  fair  proposition  proffered  by  the  opposing  party 
for  the  selection  of  such  umpire,  if  the  treaty  of  arbitration  has  not 
contemplated  and  provided  for  such  an  emergency. 

The  party  which  considers  itself  aggrieved  may  in  that  event  re- 
fer the  case  to  the  Conference,  calling  upon  it  to  determine  whether 
the  parties  are  bound  to  submit  to  arbitration. 


INTERNATIONAL    ARBTRATION  499 

1308.  In  case  the  Conference  should  be  requested  to  pass  upon 
the  refusal  to  submit  to  arbitration,  it  must  decide  in  accordance 
with  the  principles  of  "common"  law  whether  such  refusal  is  or 
is  not  justifiable,  and,  if  necessary,  require  the  refractory  state  to 
do  anything  it  properly  should  do  in  order  to  make  the  operation 
of  arbitration  possible. 

The  Conference  may,  when  occasion  requires,  designate  any 
arbitrators  needed,  choosing  them  from  the  general  panel  of  arbi- 
trators selected  for  the  Permanent  Court  of  Arbitration,  and 
declare  obligatory  a  submission  to  the  jurisdiction  of  the  arbitra- 
tors so  chosen. 

It  may  undertake  to  regulate  the  procedure  in  case  of  challenge 
of  an  appointed  arbitrator  and  entrust  to  an  arbitral  tribunal 
constituted  by  it,  the  duty  of  passing  upon  the  challenge,  reserving 
to  itself  the  right  of  confirming  or  rejecting  their  decision. 

It  may  draw  up  the  "  compromis"  in  case  of  obligatory  arbitra- 
tion, either  by  virtue  of  the  principles  of  "common"  law  or  by 
reason  of  its  decision  declaring  arbitration  obligatory,  when  one  of 
the  parties  in  dispute  would  make  arbitration  inoperative  by  re- 
fusing to  concur  in  the  "compromis." 

In  order  to  make  arbitration  really  effective  whenever  it  is  deemed  obliga- 
tory between  states,  it  is  important  to  avoid  the  possibility  of  this  procedure — • 
recognized  in  principle  as  the  best  means  of  peaceably  settling  international 
disputes, — being  defeated  by  reason  of  bad  faith  on  the  part  of  the  states 
themselves,  notwithstanding  their  agreement  to  submit  to  arbitration.  Conse- 
quently, it  is  deemed  essential  that  arbitral  justice  should  be  so  organized  as 
to  render  its  operation  effective  and  to  compel  the  parties  in  controversy  to 
appear  before  the  court  when  they  have  assumed  the  obligation  to  arbitrate. 

Hence  we  maintain  that  not  only  the  arbitration  but  even  the  "compromis" 
must  be  obligatory,  and,  likewise,  in  order  to  avoid  any  subterfuge  or  fraud, 
there  should  be  an  institution  empowered  to  assure  the  operation  of  arbitral 
justice  when  either  of  the  parties  in  dispute  attempts,  in  any  way,  to  avoid  it. 

This  result  will  be  attained,  however,  only  when  the  political  element  in  the 
enunciation  of  the  principles  of  "common"  law  will  have  been  eliminated. 


ADMINISTRATION   OF   ARBITRAL   JUSTICE 

1309.  Arbitral  justice  is  administered  by  the  Permanent  Court 
of  Arbitration  constituted  under  the  rules  formulated  in  the  Con- 
vention signed  October  18,  1907,  by  the  representatives  to  the 
second  Hague  Conference,  or  by  the  persons  chosen  as  arbitrators 


500  INTERNATIONAL   LAW   CODIFIED 

by  the  parties  in  controversy  in  accordance  with  the  rules  stipu- 
lated in  the  treaty  of  arbitration  or  in  the  compromis. 

1310.  Except  in  cases  of  special  agreements  concluded  by  the 
parties  in  dispute  in  a  treaty  of  arbitration  between  them,  the  ar- 
bitrators must  decide  issues  by  appljdng  the  rules  of  "common" 
law  proclaimed  by  the  Congress,  or  those  proclaimed  for  similar 
cases  or  analogous  matters;  and  in  the  absence  of  such  rules,  they 
will  apply  the  rules  that  may  be  deduced  from  the  general  princi- 
ples of  international  law. 

When  the  object  of  the  arbitration  is  the  interpretation  and 
application  of  a  treaty  concluded  by  the  parties  in  controversy, 
the  arbitrators  must  settle  the  dispute  by  application  of  the  princi- 
ples laid  down  in  the  treaty. 

1311.  Matters  relating  to  the  operation  of  arbitral  justice  must 
be  regulated  in  conformity  with  the  convention  concluded  at  The 
Hague,  October  18,  1907,  by  the  forty-four  states  represented 
at  the  Second  Conference;  for  this  convention,  so  far  as  these 
states  are  concerned,  has  the  authority  of  conventional  positive 
law  and  possesses  the  same  authority  over  other  states  which  may 
adhere  to  the  General  Act  of  The  Hague  of  1907  as  it  has  over  those 
which,  in  case  of  a  difference  arising  between  them,  declare  that 
they  wish  to  apply  the  rules  of  that  convention,  although  they  did 
not  subscribe  or  adhere  to  it. 

The  Convention  relating  to  international  arbitration  is  part,  of  the  General 
Act  of  October  18  1907;  it  is  the  first  of  the  fourteen  conventions  compos- 
ing that  Act.  It  is  termed:  Convention  for  the  pacific  settlement  of  international 
disputes.  The  subject  of  international  arbitration  is  regulated  therein  in 
Title  IV.  The  provisions  of  Chapter  I  are  not  reproduced  herein  because  they 
are  not  in  harmony  with  our  system;  the  other  provisions  which  constitute 
Chapter  II  of  that  title  are  reproduced  textually. 

ARBITRAL    CONVENTION   AND    "  COMPROMIS " 

1312.  It  is  incumbent  upon  the  parties  between  whom  a  dispute 
exists,  the  settlement  of  which  they  wish  to  refer  to  arbitration, 
to  formulate  their  agreement  on  the  matter  in  a  "compromis/' 
whether  their  submission  to  arbitration  is  the  result  of  a  general 
treaty  of  arbitration  or  of  a  special  convention  concluded  for  the 
case  in  controversy. 

They  must  also  state  the  disputed  points  that  are  in  issue  and 
lay  down  the  rules  of  procedure. 


INTERNATIONAL   ARBITRATION  oOl 

The  states  which  have  signed  the  Convention  of  October  18, 
1907,  or  those  which  may  later  adhere  thereto,  will  be  deemed 
obliged  conventionally  to  abide  by  the  provision  of  article  52  con- 
cerning the  " compromis"  and  the  other  provisions  governing  pro- 
cedure. 

All  other  states  have  the  right  to  agree  in  the  "compromis" 
that  they  shall  submit  their  dispute  to  the  decision  of  the  Perma- 
nent Court  of  Arbitration  estal)lished  at  The  Hague,  or  constitute 
a  special  tribunal  of  arbitration,  and  that  they  will  adopt  the  rules 
of  arbitral  procedure  laid  down  by  the  convention  of  1907  or  settle 
upon  others  in  the  "compromis"  itself. 

Where  arbitration  would  be  imposed  by  a  decision  of  the  Con- 
ference, the  "compromis"  ought  also  to  be  drawn  up  by  that  body. 

Article  52  of  the  aforesaid  Convention  is  textually  reproduced  hereafter 
under  rule  1328. 

Enforced  submission  to  arbitration  by  decision  of  the  Conference  may  occur 
in  the  cases  contemplated  in  rules  1302-1304. 

1313.  The  "compromis"  must  be  drawn  up  in  writing  and  signed 
by  the  parties. 

It  must  be  deemed  operative  and  cannot  be  impugned  except 
when  it  lacks  the  requisites  for  the  validity  of  a  treaty. 

It  may  become  inoperative  bj^  non-compliance  with  the  condi- 
tions under  which  the  parties  had  agreed  to  submit  to  arbitration. 
This  would  occur  if  the  dispute  should  involve  several  points  and 
the  parties  succeeded  in  coming  to  an  agreement  on  some  of  them, 
without  expressly  declaring  their  intention  of  allowing  the  "com- 
promis" to  subsist  as  to  the  other  points  in  issue. 

CON.STITUTION    OF   THE   TRIBUNAL   OF   ARBITRATION 

1314.  The  tribunal  of  arbitration  will  be  deemed  constituted  as 
soon  as  the  arbitrators  named  under  the  "compromis"  or  under  the 
rules  formulated  in  the  Convention  of  October  18,  1907  (when 
the  parties  shall  have  declared  their  willingness  to  comply  there- 
with) have  accepted  their  commission. 

It  will  begin  the  effective  discharge  of  its  duties  on  the  day  indi- 
cated in  the  "compromis." 

1315.  An  arbitrator  designated  may  be  challenged  and  ob- 
jected to; 


502  INTERNATIONAL   LAW    CODIFIED 

(a)  When  it  can  be  proved  that  he  has  an  interest  in  the  case; 

(6)  When,  a  sovereign  being  appointed,  it  can  be  clearly  estab- 
lished that  the  state  he  represents  has  an  identical  or  similar  ques- 
tion of  law  which  must  be  decided  in  consequence  of  a  pending 
difference  with  another  state; 

(c)  When  the  sovereign  named  as  arbitrator  has  proffered  his 
good  offices  or  mediation  in  the  controversy  which  forms  the  object 
of  the  arbitration; 

(d)  When,  owing  to  changed  conditions  of  fact,  his  impartiaUty 
may  be  seriously  questioned,  the  suspension  being  based  on  facts 
and  circumstances  of  considerable  gravity  and  importance. 

1316.  When  the  party  to  the  dispute,  to  whose  arbitrator  ob- 
jection has  been  made,  does  not  deem  the  objection  well-founded 
and  refuses  to  appoint  another  arbitrator  conformably  to  the 
"  compromis/^  the  "  coinprmnis  "  is  thereby  invalidated. 

Nevertheless,  the  parties  may,  by  means  of  a  special  agreement, 
name  other  arbitrators  with  power  to  decide  upon  the  merits  of  the 
objection. 

Such  a  decision  could  not  be  rendered  by  the  tribunal  of  arbitra- 
tion constituted  under  the  original  "  compromis." 

ON   THE   PERMANENT   COURT   OF    ARBITRATION  * 

1317.  With  the  object  of  facilitating  an  immediate  recourse  to 
arbitration  for  international  differences,  which  it  has  not  been  possible 
to  settle  by  diplomacy,  the  Contracting  Potoers  undertake  to  maintain 
the  Permanent  Court  of  Arbitration,  as  established  by  the  First  Peace 
Conference,  accessible  at  all  times,  and  operating,  unless  otherwise 
stipulated  by  the  parties,  in  accordance  with  the  rules  of  procedure 
inserted  in  the  present  Convention.    {Art.  J^l.) 

1318.  The  Permanent  Court  is  competent  for  all  arbitration  cases, 
unless  the  parties  agree  to  institute  a  special  Tribunal.    (Art.  4^.) 

^  Here  will  be  found  a  verbatim  copy  of  the  codification  worked  out  by  the 
Conference  of  1907  which,  as  regards  the  forty-four  signatory  states  and  the 
states  which  may  adhere  to  the  Convention,  constitutes,  when  ratified,  the 
"common"  law  of  the  international  society. 

These  provisions,  textually  reproduced,  form  chapter  II  of  Convention  I. 
The  numbers  of  the  rules,  which  are  placed  at  the  head  of  the  articles  of  this 
Convention,  correspond  to  articles  41  et  seq.  of  the  official  text,  arbitration 
being  regulated  in  articles  37  to  97. 


INTERNATIONAL   AUBITRATION  503 

SEAT  OF  THE    PERMANENT   COURT 

1319.  The  Permanent  Court  sits  at  The  Hague. 

An  International  Bureau  serves  as  registry  for  the  Court. 

It  is  the  channel  for  communications  relative  to  the  meetings  of  the 
Court.  It  has  charge  of  the  archives  and  conducts  all  the  administra- 
tive business. 

The  Contracting  Powers  undertake  to  communicate  to  the  Bureau,  as 
soon  as  possible,  a  certified  copy  of  any  conditions  of  arbitration 
arrived  at  between  them  and  of  any  award  concerning  them  delivered 
by  a  special  Tribunal. 

They  likewise  undertake  to  communicate  to  the  Bureau  the  laws, 
regulations,  and  documents  eventually  showing  the  execution  of  the 
awards  given  by  the  Court.    {Art.  43.) 

SELECTION   OF   THE   MEMBERS   OF  THE   COURT 

1320.  Each  Contracting  Power  selects  four  persons  at  the  most, 
of  known  competency  in  questions  of  international  law,  of  the  highest 
moral  reputation,  and  disposed  to  accept  the  duties  of  Arbitrator. 

The  persons  thus  selected  are  inscribed,  as  members  of  the  Court, 
in  a  list  which  shall  be  notified  to  all  the  Contracting  Powers  by  the 
Bureau. 

Any  alteration  in  the  list  of  Arbitrators  is  brought  to  the  knowledge 
of  the  Contracting  Powers. 

Two  or  more  Powers  may  agree  on  the  selection  in  common  of  one 
or  more  members. 

The  same  person  can  be  selected  by  different  Powers. 

The  members  of  the  Court  are  appointed  for  a  term  of  six  years. 
These  appointments  are  renewable. 

Should  a  member  of  the  Court  die  or  resign,  the  same  procedure  is 
followed  for  filling  the  vacancy  as  was  followed  for  appointing  him. 
In  this  case,  the  appointment  is  made  for  another  period  of  six  years. 
(Art.  U.) 

SELECTION   OF  ARBITRATORS 

1321.  When  the  Contracting  Powers  wish  to  have  recourse  to  the 
Permanent  Court  for  the  settlement  of  a  difference  which  has  arisen 


504  INTERNATIONAL   LAW    CODIFIED 

between  them,  the  Arbitrators  called  upon  to  form  the  Tribunal  having 
jurisdiction  to  decide  this  difference,  must  be  chosen  from  the  general 
list  of  members  of  the  Court. 

If  direct  agreement  of  the  parties  on  the  composition  of  the  Arbitra- 
tion Tribunal  cannot  be  obtained,  the  following  course  shall  be  pur- 
sued: 

Each  party  appoints  two  Arbitrators,  of  whom  one  only  can  be  its 
yiational  representative  or  chosen  from  among  the  persons  selected  by 
it  as  members  of  the  Permanent  Court.  These  Arbitrators  together 
choose  an  Umpire. 

If  the  votes  are  equally  divided,  the  choice  of  the  Umpire  is  en- 
trusted to  a  third  Power  mutually  agreed  upon  by  the  parties. 

If  an  agreement  is  not  reached  on  this  subject,  each  party  selects 
a  different  Power,  and  the  choice  of  the  Umpire  is  made  in  concert 
by  the  Powers  thus  selected. 

If,  within  two  months'  time,  these  two  Powers  cannot  come  to  an 
agreement,  each  of  them  presents  two  candidates  taken  from  the  list 
of  members  of  the  Permanent  Court,  exclusive  of  the  members  selected 
by  the  parties  and  not  being  nationals  of  either  of  them.  Drawing  lots 
determines  which  of  the  candidates  thus  presented  shall  be  Umpire. 
(Art.  45.) 

INSTALLATION   OF  THE   ARBITRATION   TRIBUNAL  AND   JURISDICTION 

OF   THE    PERMANENT   COURT 

1322.  The  Tribunal  being  thus  composed,  the  parties  notify  the 
Bureau  of  their  determination  to  have  recourse  to  the  Court,  the  text 
of  their  compromis,  and  the  names  of  the  Arbitrators. 

The  Bureau  communicates  without  delay  to  each  Arbitrator  the 
"compromis, "  and  the  names  of  the  other  members  of  the  Tribunal. 

The  Tribunal  assembles  at  the  date  fixed  by  the  parties.  The  Bu- 
reau makes  the  necessary  arrangements  for  the  meeting. 

The  members  of  the  Tribunal,  in  the  exercise  of  their  duties  and  out 
of  their  own  country,  enjoy  diplomatic  privileges  and  immunities. 
{Art.  46.) 

1323.  The  Bureau  is  authorized  to  place  its  offices  and  staff  at  the 
disposal  of  the  Contracting  Powers  for  the  use  of  any  special  Board  of 
Arbitration. 

The  jurisdiction  of  the  Permanent  Court  may,  within  the  conditions 


INTERNATIONAL    ARBITRATION  505 

laid  down  in  the  regulations,  be  extended  to  disputes  between  non- 
contracting  Powers  or  between  Contracting  Powers  and  non-Contract- 
ing Powers,  if  the  parties  are  agreed  on  recourse  to  this  Tribunal. 
{Art.  47.) 

1324.  The  Contracting  Powers  consider  it  their  duty,  if  a  serious 
dispute  threatens  to  occur  between  two  or  more  of  them,  to  remind  the 
contending  parties  that  the  Permanent  Court  is  open  to  them. 

Consequently  they  declare  that  the  fact  of  reminding  the  parties  in 
dispute  of  the  provisions  of  the  present  Convention,  and  the  advice 
given  to  them,  in  the  interest  of  peace,  to  have  recourse  to  the  Perma- 
nent Court,  can  only  be  regarded  as  friendly  actions. 

In  case  of  dispute  between  two  Powers,  one  of  them  can  always 
address  to  the  International  Bureau  a  note  containing  a  declaration 
of  its  willingness  to  submit  the  dispute  to  arbitration. 

The  Bureau  must  at  once  inform  the  other  Power  of  the  declaration. 
(Art.  48.) 

t 

PERMANENT   ADMINISTRATIVE   COUNCIL 

1325.  The  Permanent  Administrative  Council,  composed  of  the 
Diplomatic  Representatives  of  the  Contracting  Powers  accredited  to 
The  Hague  and  of  the  Netherland  Minister  for  Foreign  Affairs,  ivho 
will  act  as  President,  is  charged  with  the  direction  and  control  of  the 
International  Bureau. 

The  Council  settles  its  rules  of  procedure  and  all  other  necessary 
regulations. 

It  decides  all  questions  of  administration  which  may  arise  with  re- 
gard to  the  operations  of  the  Court. 

It  has  entire  control  over  the  appointment,  suspension,  or  dismissal 
of  the  officials  and  employee's  of  the  Bureau. 

It  fixes  the  payments  and  salaries,  and  controls  the  general  expendi- 
ture. 

At  meetings  didy  summoned  the  presence  of  nine  members  is  suffi- 
cient to  render  valid  the  discussions  of  the  Council.  The  decisions  are 
made  by  majority  vote. 

The  Council  communicates  to  the  Contracting  Power's  without  delay 
the  regulations  adopted  by  it.  It  furnishes  them  with  an  annual  report 
on  the  labors  of  the  Court,  the  working  of  the  administration,  and  the 
expenditure.     The  report  likewise  contains  a  resume  of  what  is  im- 


506  INTERNATIONAL   LAW    CODIFIED 

portant  in  the  documents  communicated  to  the  Bureau  by  the  Powers 
in  virtue  of  Article  XLIII,  (7)  paragraphs  3  and  4  (Art.  49).  Vide 
No.  1319  of  rules  above  set  forth. 

1326.  The  expenses  of  the  Bureau  shall  he  home  hy  the  Contracting 
Powers  in  the  proportion  fixed  for  the  International  Bureau  of  the 
Universal  Postal  Union. 

The  expenses  to  he  charged  to  the  adhering  Powers  shall  he  reckoned 
from  the  date  on  which  their  adhesion  takes  effect. 

ARBITRAL  PROCEDURE.   "COMPROMIS" 

1327.  With  a  view  to  encouraging  the  development  of  arbitration, 
the  Contracting  Powers  have  agreed  upon  the  following  rules,  which  are 
applicahle  to  arbitration  procedure,  unless  special  rules  have  been 
mutually  adopted  hy  the  parties  in  dispute.    (Art.  51 .) 

1328.  The  Powers  which  have  recourse  to  arbitration  sign  a  ''com- 
promis,'^  in  which  the  subject  of  the  dispute  is  clearly  defined,  the 
time  allowed  for  appointing  arbitrators,  the  form,  order  and  time  in 
which  the  communication  referred  to  in  Article  LXIII  (rule  1339 
hereinafter  stated)  must  be  made,  and  the  amount  which  each  party 
must  contribute  in  advance  toward  defraying  the  expenses. 

The  '^ compromis"  likewise  defines,  if  there  is  occasion,  the  manner 
of  appointing  arbitrators,  any  special  powers  which  may  eventually 
belong  to  the  Tribunal,  where  it  shall  meet,  the  language  it  shall  use, 
and  the  languages  the  employment  of  which  shall  be  authorized  before 
it,  and,  generally  speaking,  all  the  conditions  upon  which  the  parties 
are  agreed.     {Art.  52.) 

COMPETENCE  OF  THE  COURT  IN  REGARD  TO  THE  ''COMPROMIS" 

1329.  The  Permanent  Court  is  competent  to  settle  the  "com- 
promise^ if  the  parties  are  agreed  to  submit  it  to  said  Tribunal  for 
that  purpose. 

It  is  likewise  competent,  even  though  the  request  be  made  by  only 
one  of  the  parties,  when  all  attempts  to  reach  an  understanding  through 
diplomatic  channels  have  failed,  in  the  case  of: — 

(1)  A  dispute  covered  by  a  general  treaty  of  arbitration  concluded 
or  renewed  after  the  present  Convention  has  become  effective,  and 
•providing  for  a  " compromis'^  in  all  disputes  and  not  either  explicitly 


INTERNATIONAL    ARBITRATION  507 

or  implicitly  excluding  the  settlement  of  the  "compromis"  from  the 
competence  of  the  Court. 

Recourse  cayinot,  however,  he  had  to  the  Court  if  the  other  party 
declares  that,  in  its  opinioji,  the  dispute  does  not  belong  to  the  category 
of  disputes  which  can  he  suhmitted  to  compulsory  arhitration,  unless 
the  treaty  of  arbitration  confers  upon  the  Arbitration  Tribunal  the 
power  of  deciding  this  preliminary  question. 

(2)  A  dispute  arising  from  contract  debts  claimed  from  one  Power 
by  another  Power  as  due  to  its  nationals,  and  for  the  settlement  of 
which  the  offer  of  arhitration,  has  been  accepted.  This  arrangement 
is  not  applicable  if  acceptance  is  subject  to  the  condition  that  the  "com- 
promise^ should  be  settled  in  some  other  way.    {Art.  53.) 

1330.  In  the  cases  contemplated  in  the  preceding  Article,  the  " com- 
promise ^  shall  he  settled  by  a  Commission  consisting  of  five  members 
selected  in  the  manner  indicated  in  Article  XLV  {1321),  paragraphs 
3  to  6. 

The  fifth  member  is  President  of  the  Commission  ex  officio. 
{Art.  54.) 

CONSTITUTION    OF   THE   ARBITRAL   TRIBUNAL 

1331.  The  duties  of  Arbitrator  may  he  conferred  on  one  Arbitrator 
alone  or  on  several  arbitrators  selected  by  the  parties  as  they  please, 
or  chosen  by  them,  from  the  members  of  the  Permanent  Court  of  Arbi- 
tration established  by  the  Convention  of  October  18,  1907. 

In  the  event  of  failure  to  constitute  the  Tribunal  by  direct  agreement 
between  the  parties  in  dispute,  the  course  indicated  in  Article  XLV 
{1321)  paragraphs  3  to  6,  is  followed  {Art.  55.) 

1332.  When  a  Sovereign  or  the  Chief  of  a  State  is  chosen  as  Arbi- 
trator, the  arbitration  procedure  is  settled  by  him.    {Art.  56.) 

1333.  The  Umpire  is  President  of  the  Tribunal  ex  officio. 

When  the  Tribunal  does  not  include  an  Umpire,  it  appoints  its 
own  President.     {Art.  57.) 

1334.  When  the  " compromis'^  is  settled  by  a  Commission,  as 
contemplated  in  Art.  XL  V  {1321),  and  in  the  absence  of  an  agreement 
to  the  contrary,  the  Commission  itself  shall  form  the  Arbitration  Tri- 
bunal.   {Art.  58.) 

1335.  Should  one  of  the  Arhitrators  either  die,  retire,  or,  far  any 
reason  whatsoever,  he  unable  to  discharge  his  functions,  the  same 


508  International  law  codified 

procedure  is  followed  for  filling  the  vacancy  as  was  followed  for  ap- 
pointing him.     {Art.  59.) 

PLACE   OF   MEETING    OF   THE    ARBITRATION   TRIBUNAL 

1336.  The  Tribunal  sits  at  The  Hague,  unless  some  other  place  is 
selected  hy  the  parties  in  dispute. 

The  Tribunal  can  only  assemble  on  the  territory  of  a  third  Power 
with  the  lattefs  consent. 

The  place  of  meeting  once  fixed  cannot  be  altered  by  the  Tribunal 
except  by  mutual  consent  of  the  parties.    {Art.  60.) 

1337.  If  the  question  as  to  what  languages  are  to  be  used  has  not 
been  settled  by  the  "  compromis,"  it  shall  be  decided  by  the  Tribunal. 
{Art.  61.) 

PROCEDURE 

1338.  The  parties  in  dispute  are  entitled  to  appoint  special  agents 
to  attend  the  Tribunal  and  to  act  as  intermediaries  between  themselves 
and  the  Tribunal. 

They  are  further  authorized  to  appoint  and  retain  counsel  or 
advocates  for  the  defense  of  their  rights  and  interests  before  the 
Tribunal. 

The  members  of  the  Permanent  Court  may  not  act  as  agents,  counsel 
or  advocates  except  on  behalf  of  the  Power  which  appointed  them  mem- 
bers of  the  Court.     {Art.  62.) 

1339.  As  a  general  ride,  arbitration  procedure  comprises  two  dis- 
tinct phases, — pleadings  and  oral  discussion. 

The  pleadings  consist  in  the  communication  by  the  respective  agents 
to  the  members  of  the  Tribunal  and  the  opposite  party  of  cases,  counter- 
cases,  and,  if  necessary,  of  replies.  The  parties  annex  thereto  all 
papers  and  documents  pertinent  to  the  case.  This  communication 
shall  be  made  either  directly  or  through  the  intermediary  of  the  In- 
ternational Bureau,  in  the  order  and  within  the  time  fixed  by  the 
^^  compr'omis." 

The  time  fixed  by  the  "compromis"  may  be  extended  by  mutual 
agreement  of  the  parties,  or  by  the  Tribunal  when  the  latter  considers 
it  necessary  for  the  purpose  of  reaching  a  just  decision. 

The  discussions  consist  in  the  oral  development  of  the  arguments 
of  the  parties  before  the  Tribunal.    {Art.  63.) 


INTERNATIONAL    ARBITRATION  509 

1340.  A  certified  copy  of  every  document  produced  by  one  party 
7yiust  be  communicated  to  the  other  party.    {Art.  64-) 

1341.  Unless  special  circumstances  arise,  the  Tribunal  does  not 
meet  until  the  pleadings  are  closed.    (Art.  65.) 

1342.  The  discussions  are  under  the  control  of  the  President. 
They  are  not  public  unless  it  be  so  decided  by  the  Tribunal  with 

the  assent  of  the  parties. 

They  are  recorded  in  minutes  drawn  up  by  the  Secretaries  ap- 
pointed by  the  President.  These  minutes  are  signed  by  the  President 
and  by  one  of  the  Secretaries,  without  which  signatures  they  have  no 
authentic  character.     (Art.  66.) 

1343.  After  the  close  of  the  pleadings,  the  Tribunal  is  entitled  to 
refuse  discussion  of  all  new  papers  or  documents  which  one  of  the 
parties  may  wish  to  submit  to  it  without  the  consent  of  the  other  party. 
{Art.  67.) 

1344.  The  Tribunal  is  free  to  consider  new  papers  or  documents 
to  which  its  attention  may  be  drawn  by  the  agents  or  counsel  of  the 
parties. 

In  this  case,  the  Tribunal  has  the  light  to  require  the  production  of 
these  papers  or  documents,  but  is  obliged  to  make  them  known  to  the 
opposite  party.     {Art.  68.) 

1346.  The  Tribunal  can  also  require  the  production  of  all  papers 
and  demand  all  necessary  explanations  from  the  agents  of  the  parties 
in  dispute.  In  case  of  refusal  the  Tribunal  makes  note  of  it.  {Art. 
69.) 

1346.  The  agents  and  the  counsel  of  the  parties  in  controversy  are 
authorized  to  present  orally  to  the  Tribunal  all  the  arguments  they  may 
consider  expedient  in  defense  of  their  case.    {Art.  70.) 

1347.  They  are  entitled  to  raise  objections  and  points.  The  deci- 
sions of  the  Tribunal  on  these  points  are  final  and  cannot  form  the 
.subject  of  any  subsequent  discussion.     {Art.  71.) 

1348.  The  members  of  the  Tribunal  are  entitled  to  interrogate  the 
agents  and  counsel  of  the  parties,  and  to  ask  them  for  explanations  on 
doubtful  points. 

Neither  the  questions  asked,  nor  the  remarks  made  by  members  of 
the  Tribunal  in  the  course  of  the  discussions  can  be  regarded  as  an 
expression  of  opinion  by  the  Tribunal  in  general  or  by  its  members  in 
particular.     {Art.  72.) 

1349.  The  Tribunal  is  authorized  to  declare  its  competence  in  inter- 


510  INTERNATIONAL   LAW   CODIFIED 

preting  the  "compr'07tiis/'  as  well  as  the  other  treaties  which  may  he 
invoked,  and  in  applying  the  principles  of  law.    {Art.  73.) 

1350.  The  Tribunal  is  entitled  to  issue  ndes  of  procedure  for  the 
conduct  of  the  case,  to  decide  the  forms,  order,  and  time  in  which  each 
party  must  conclude  its  arguments,  and  to  arrange  all  the  formalities 
required  for  dealing  with  the  evidence.    {Art.  74-) 

1351.  The  parties  undertake  to  supply  the  Tribunal,  as  fully  as 
they  consider  possible,  with  all  the  information  required  for  deciding 
the  case.     {Art.  75). 

1352.  For  all  notices  which  the  Tribunal  has  to  serve  in  the  territory 
of  a  third  Contracting  Power,  the  Tribunal  shall  apply  direct  to  the 
Government  of  that  Power.  The  same  rule  applies  in  the  case  of  steps 
being  taken  to  procure  evidence  on  the  spot. 

The  requests  for  this  purpose  are  to  be  executed  so  far  as  the  means 
at  the  disposal  of  the  Power  applied  to,  under  its  municipal  law,  will 
permit.  They  cannot  be  rejected  unless  the  Power  in  question  con- 
siders them  calculated  to  impair  its  own  sovereign  rights  or  its  safety. 

The  Court  will  be  always  entitled  to  act  through  the  Power  on  whose 
territory  it  assembles.    {Art.  76.) 

1353.  When  the  agents  and  counsel  of  the  parties  in  dispute  have 
submitted  all  the  explanations  and  evidence  in  support  of  their  respec- 
tive contentions,  the  President  shall  declare  the  discussion  ^closed. 
{Art.   77.) 

1354.  The  Tribunal  considers  its  decisions  in  private  and  the  pro- 
ceedings remain  secret. 

All  questions  are  decided  by  a  majority  of  the  members  of  the  Tribu- 
nal.    {Art.  78.) 

1355.  The  award  must  give  the  reasons  upon  which  it  is  based. 
It  contains  the  names  of  the  Arbitrators,  and  is  signed  by  the 
President  and  Registrar  or  by  the  Secretary  acting  as  Registrar. 
{Art.  79.) 

1356.  The  award  is  read  out  in  public  sitting,  the  agents  or  counsel 
for  the  parties  being  present  or  duly  summoned  to  attend.    {Art.  80.) 

1357.  The  award,  duly  pronounced  and  communicated  to  the  agents 
of  the  parties,  settles  the  dispide  definitively  and  without  appeal. 

1358.  Any  dispute  arising  between  the  parties  as  to  the  interpreta- 
tion and  execution  of  the  award  shall,  in  the  absence  of  an  agreement 
to  the  contrary,  be  submitted  to  the  Tribunal  which  pronounced  it. 
{Art.  82.) 


INTERNATIONAL    ARBITRATION  511 

1359.  The  parties  can  reserve  in  the  "  co?npromis"  the  right  to 
demand  the  revision  of  the  award. 

In  this  case  and  unless  there  be  an  agreement  to  the  contrary,  the 
demand  must  he  addressed  to  the  Tribunal  which  pronounced  the 
award.  It  can  only  be  made  on  the  ground  of  the  discovery  of  some 
neiv  fact  calculated  to  materially  affect  the  award  and  which  was  un- 
known to  the  Tribunal  and  to  the  party  which  demanded  the  revision 
at  the  time  the  discussion  was  closed. 

Proceedings  for  revision  can  only  be  instituted  by  a  decision  of  the 
Tribunal  expressly  recording  the  existence  of  the  new  evidence,  recog- 
nizing in  it  the  character  described  in  the  preceding  paragraph,  and 
declaring  the  detnand  admissible  on  this  ground. 

The  ^'compromis'^  fixes  the  period  within  which  the  demand  for 
revision  must  be  made.     (Ai't.  83.) 

1360.  The  award  is  binding  only  upon  the  parlies  in  dispute. 
When  it  concerns  the  interpretation  of  a  Convention  to  which  Powers 

other  than  those  in  dispute  are  parties,  they  shall  inform  all  the  signa- 
tory Powers  in  ample  time.  Each  of  these  Powers  is  entitled  to  inter- 
vene in  the  case.  If  one  or  more  avail  themselves  of  this  right,  the  inter- 
pretation contained  in  the  award  is  equally  binding  on  them.  (Art. 
84.) 

While  this  rule  is  binding  upon  all  the  states  which  took  part  in  The  Hague 
Conference  of  1907,  we  deem  it  expedient  to  state  that,  just  as  any  conven- 
tional obligation  is  binding  upon  all  the  states  which  have  assumed  it,  so  like- 
wise should  its  interpretation  by  an  Arbitration  Tribunal  be  binding  upon 
them.  It  is  manifestly  proper  that  in  a  case  involving  interpretation,  all  the 
interested  states  should  be  represented  and  that  accordingly,  every  Power 
signatory  to  the  disputed  treaty  should  be  informed  in  ample  time  to  enable 
them  to  intervene  in  the  arbitration  if  they  so  desire.  Should  .some  of  them 
intervene,  however,  while  others  fail  to  do  so,  we  think  that  the  interpretative 
award  is  binding  upon  all  the  parties  signatory  to  the  treaty.  The  interpreta- 
tion given  in  the  arbitral  award  establishes  the  meaning  of  the  treaty  and  the 
nature  and  extent  of  the  obligation  assumed  by  the  parties  which  subscribed 
the  treaty.  Certainly,  when  duly  interpreted,  it  must  have  the  same  legal 
value  for  all  parties  concerned. 

If,  in  effect,  the  Powers  not  intervening  in  the  case  could  disregard  the  arbi- 
trator's interpretation  and  bring  about  another  interpretative  award,  it  would 
follow,  in  case  of  dissimilarity  of  the  awards,  that  the  same  convention  might 
have  a  difTerent  value  with  respect  either  to  one  or  other  of  the  signatory 
Powers. 

1361.  Each  party  in  controversy  pays  its  own  expenses  as  well  as 
an  equal  share  of  the  expenses  of  the  Tribunal.    {A  rt.  85.) 


512  INTERNATIONAL   LAW    CODIFIED 

ARBITRATION    BY   SUMMARY   PROCEDURE 

1362.  With  a  view  to  facilitoting  the  working  of  the  system  of  arbi- 
tration in  disputes  admitting  of  a  summary  procedure,  the  Contract- 
ing Powers  adopt  the  following  rules,  which  shall  he  observed  in  the 
absence  of  other  arrangements  and  subject  to  the  reservation  that  the 
rides  concerning  arbitration  procedure  already  established  shall  apply 
as  far  as  practicable.     {Art.  86.) 

1363.  Each  of  the  parties  in  dispute  appoints  an  Arbitrator.  The 
two  Arbitrators  thus  selected  choose  an  Umpire.  If  they  do  not  agree 
on  this  point,  each  of  them  proposes  two  candidates  taken  from  the 
general  list  of  the  members  of  the  Permanent  Court  exclusive  of  the 
members  appointed  by  either  of  the  parties  in  controversy  and  not 
being  nationals  of  either  of  them;  from  among  the  candidates  thus 
proposed  the  Umpire  is  determined  by  lot. 

The  Umpire  presides  over  the  Tribunal  which  gives  its  decisions 
by  a  majority  of  votes.    (Ai-t.  87.) 

1364.  In  the  absence  of  any  previous  agreement,  the  Tribunal,  so 
soon  as  it  is  formed,  settles  the  time  within  which  the  parties  in  dispute 
must  submit  their  respective  claims  to  it.    (Art.  88.) 

1365.  Each  party  is  represented  before  the  Tribunal  by  an  Agent, 
who  serves  as  intermediary  between  the  Tribunal  and  the  Government 
which  appointed  him.    {Art.  89). 

1366.  The  proceedings  are  conducted  exclusively  in  writing.  Each 
party,  however,  is  entitled  to  ask  that  witnesses  and  experts  be  called. 
The  Tribunal  reserves  the  right  to  demand  oral  explanations  from  the 
Agents  of  the  parties  in  controversy,  as  well  as  from  experts  and  wit- 
nesses whose  appearance  in  Court  it  may  deem  necessary.    {Art.  90.) 

We  have  reproduced  verbatim  the  Convention  concerning  arbitration  and 
arbitral  procedure,  which  is  part  of  the  General  Act  signed  at  The  Hague  on 
October  18,  1907,  because  it  virtually  constitutes  the  conventional  law  of 
the  forty-four  states  represented  at  the  Second  Hague  Conference.  This  Con- 
vention has  amplified  and  modified  in  some  particulars  the  General  Act  of  the 
first  Convention  signed  July  29,  1899,  which  contained  only  forty-seven  (47) 
articles. 

Taken  as  a  whole,  the  conventional  rules  of  arbitral  justice  of  1907  are  very 
complete  so  far  as  concerns  the  formal  matter  of  procedure  in  arbitration;  but 
with  respect  to  the  substantial  part,  they  constitute  rather  a  doctrinal  declara- 
tion than  a  set  of  legal  rules.  In  effect,  the  provisions  of  articles  38  and  48 
(given  verbatim  as  a  note  under  rule  1299,  and  under  rule  1324)  do  not  es- 
tablish any  legal  duty,  so  that  arbitration  is  in  substance  left  entirely  to  the 
good  faith  of  the  contracting  states.    Article  40  stipulates  as  follows  concern- 


INTERNATIONAL    ARBITRATION  513 

ing  the  general  or  special  treaties  of  arbitration  which  may  be  concluded  be- 
tween states: 

"Independently  of  general  or  private  treaties  expressly  stipulating  recourse 
to  arbitration  as  obligatory  on  the  contracting  Powers,  the  said  Powers 
reserve  to  themselves  the  right  of  concluding  new  agreements,  general  or 
particular,  with  a  view  to  extending  compulsory  arbitration  to  all  cases  which 
they  may  deem  it  possible  to  suljinit  to  it." 

Nevertheless,  even  in  the  case  of  a  general  treaty  of  compulsory  arbitration, 
should  one  of  the  parties  declare  that  in  its  opinion  the  dispute  does  not  come 
within  the  category  of  disputes  which  can  be  submitted  to  compulsory  arbitra- 
tion, the  obligation  assumed  by  the  general  treaty  of  compulsory  arbitration 
would  become  useless  according  to  the  provision  of  article  53,  No.  1  (given 
verbatim  in  rule  1329). 

While  admitting  in  principle  the  efficacy  of  arbitration,  the  contracting 
states  have  never  established  in  common  accord  the  requirements  legally 
indispensable  for  making  arbitral  justice  practically  effective;  that  is  to  say, 
they  have  not  yet  concluded  a  convention  which  prohibits  parties  in  dispute 
from  arbitrarily  determining  for  themselves  whether  the  controversy  does  or 
does  not  belong  in  the  category  of  disputes  which  are  properly  subject  to  com- 
pulsory arbitration.  It  is,  therefore,  apparent  that  much  progress  will  have 
to  be  made  in  this  direction  in  order  that  arbitration  may  become  the  most 
effective  and  equitable  means  of  settling  disputes  between  states.  To  accom- 
plish this  purpose  it  will  first  be  necessary  to  overcome  the  resistance  of  poli- 
tics and  in  some  measure  to  modify  its  tendency. 

Another  observation  deemed  appropriate  at  this  juncture  has  reference  to 
the  order  of  the  provisions  of  the  Convention,  which  are  not  grouped  in  a  very 
methodical  manner.  For  example,  in  the  matter  of  the  jurisdiction  of  the 
Court  of  Arbitration,  it  is  necessary  to  refer  to  rules  scattered  here  and  there 
and  indeed  often  misplaced  (see  articles  47,  53,  73,  74  and  83,  given  herein  as 
rules  1323,  1329,  1349,  1350,  1359).  Would  it  not  be  better  to  provide  for  the 
grouping  of  all  rules  l)earing  upon  the  .same  subject?  The  same  observation 
may  be  made  concerning  the  rules  of  the  "compromis,"  etc.,  but  as  it  will  be 
necessary  to  revise  the  Convention  in  question,  it  is  hoped  that  provision  will 
be  made  for  better  regulation  not  only  of  its  substance  and  content  but  also 
of  its  form  and  methodical  arrangement. 

RULES  CONCERN  IN  (J  THE  ARBITRATION 

1367.  The  arbitral  Tribunal,  when  duly  constituted,  cannot  re- 
fuse to  render  a  decision  on  all  the  points  of  the  dispute,  as  deter- 
mined and  stated  in  the  "  co)nproniis."  It  ought  not  to  extend  its 
award  beyond  the  matter  in  thspute. 

1368.  The  Tribunal  must  pronounce  its  award  within  a  reason- 
able time,  and  cannot  extend  the  time  indefinitely  by  claiming 
that  it  is  insufficiently  enlightenetl  on  the  questions  of  fact  or 
principles  of  law  which  it  is  to  apply. 

When  the  parties  in  dispule  have  mutually  determined  the  time 
hniit  within  which  the  IVibunal  must  render  its  decision,  the  Tri- 


514  INTERNATIONAL  LAW   CODIFIED 

bunal  should  have  the  right  to  determine  whether  or  not  it  will  be 
able  to  render  its  award  within  the  time  specified,  and  to  establish 
such  time  limit  as,  in  its  judgment,  the  nature  of  the  controversy 
may  require. 

Any  such  determination  as  to  the  time  limit  provided  for  the 
award  must  be  communicated  to  the  parties  in  dispute. 

1369.  The  Tribunal,  having  regard  for  the  declarations  of  the 
parties  in  controversy,  may,  by  a  provisional  ruling,  order  the  post- 
ponement of  the  case,  in  order  to  give  the  parties  due  time  in 
which  to  reach  an  understanding  and  to  compose  their  dif- 
ferences. 

1370.  It  is  the  duty  of  each  arbitrator  to  take  part  in  the  deliber- 
ation of  the  Court,  save  in  case  of  physical  impossibility. 

In  case  of  justifiable  absence  of  one  of  the  arbitrators,  the  Tribu- 
nal must  postpone  its  decision  if  the  cause  of  absence  be  temporary. 
If,  however,  the  cause  is  of  a  permanent  character  or  protracted,  it 
then  becomes  necessary  to  provide  a  substitute  for  the  arbitrator 
who  is  unable  to  discharge  his  duties,  applying  the  same  rules 
which  governed  his  selection. 

1371.  When  the  absence  of  an  arbitrator,  at  the  time  the  award 
is  to  be  pronounced,  is  manifestly  due  to  a  predetermined  conclu- 
sion or  to  a  subterfuge  on  his  part,  a  majority  of  the  Tribunal 
present  should  be  entitled  to  prescribe  the  proper  measures  for 
obviating  the  difficulty  and  deciding  the  case. 

1372.  When  the  measures  prescribed  by  the  Tribunal  prove 
ineffective,  and  serious  reasons  exist  for  presuming  connivance  on 
the  part  of  the  interested  Government,  such  treacherous  action 
ought  to  be  considered  as  an  act  of  bad  faith  and  contrary  to  the 
principles  of  law;  it  should  constitute  sufficient  ground  to  appeal 
to  the  Conference,  as  in  case  of  arbitrary  refusal  to  submit  to  arbi- 
tral jurisdiction  or  to  execute  the  award. 

1373.  It  is  the  duty  of  each  arbitrator  to  subscribe  the  award 
adopted  by  the  majority,  although  dissenting.  Should  one  of 
ihcm  refuse,  the  award  signed  by  the  majority  will  be  valid  and 
operative,  if  the  majority  has  certified  such  refusal  in  a  declaration 
duly  subscribed. 

1374.  The  award  must  be  reduced  to  writing  and  must  indicate 
the  reasons  on  which  it  is  based  and  its  effective  conclusions  on  all 
the  contested  points  submitted  to  arbitration. 


INTERNATIONAL  ARBITRATION  515 

EXECUTION    OF   THE   AWARD 

1375.  The  award,  when  duly  pronounced  and  communicated 
in  conformity  with  rules  1354-1357,  must  be  executed  in  good 
faith. 

1376.  When  the  award  has  imposed  a  financial  burden  or  re- 
quires legislative  measures  for  its  execution  on  the  part  of  the  los- 
ing party,  it  has,  nevertheless,  the  authority  of  a  final  judgment 
with  respect  to  the  losing  state,  and  its  validity  and  force,  so  far  as 
the  obligation  of  its  execution  is  concerned,  cannot  be  made  de- 
pendent upon  the  approval  or  ratification  of  the  legislature. 

The  award,  in  so  far  as  it  settles  a  controversy  between  state  and  state  must 
be  considered  final,  and  its  authority  absolute  in  so  far  as  it  pronounced  upon 
the  rights  and  obligations  of  the  Parties  on  the  basis  of  the  "compromis" 
submitting  the  case  to  arbitration.  The  decision  rendered  by  a  Tribunal  in- 
vested with  such  a  power  must,  therefore,  have  the  authority  of  res  adjudicata 
in  the  relations  between  state  and  state,  and  consequently  its  findings  and  con- 
clusions cannot  be  subordinated  to  any  e.xtraneous  conditions.  The  question 
of  legislative  measures  which  might  be  necessary  to  e.xecute  the  award,  is  one 
of  municipal  public  law.  It  is  the  duty  of  the  Government,  therefore,  to  do 
whatever  may  be  necessary  to  carry  out  the  obligations  imposed  upon  the 
state  by  virtue  of  the  award.  If,  however,  it  could  be  admitted  that  the 
legislative  power  could  render  ineffective  the  authority  of  a  final  judgment 
(res  adjudicata)  denying  to  the  Government  the  means  of  fulfilling  the  obliga- 
tions imposed  upon  the  state  by  a  final  judgment,  it  would  also  follow  that  the 
final  decisions  of  the  courts  of  the  state  could  be  rendered  fruitless  and  nuga- 
tory by  refusing  the  means  to  execute  them.  This  would  imply  a  strange  con- 
fusion of  the  three  powers  of  government  which  constitute  sovereignty. 

1377.  A  State  which,  on  being  requested  by  the  other  party, 
should  refuse  to  fulfill  in  good  faith  the  obligations  imposed  on  it 
by  the  award,  would  commit  an  arbitrary  act  in  opposition  to  con- 
ventional law,  and  would  thus  assume  an  international  responsibil- 
ity warranting  recourse  to  the  Conference.  The  latter  could  au- 
thorize such  steps  to  be  taken  as  might  be  required  for  settling 
the  difference  and,  if  necessarj'',  could  employ  coercive  measures 
permissible  in  time  of  peace  for  compelling  the  refractory  state  to 
respect  the  final  judgment. 

1378.  The  suspension  of  execution  of  an  arbitral  award  on  the 
part  of  a  losing  state  could  only  be  justified  if  that  state  were  to 
lodge  an  appeal  before  the  Conference,  claiming  either  (a)  that 
the  award  was  affected  with  a  vice  entailing  its  nullity,  or  (b)  that 
it  should  be  declared  incapable  of  execution  either  in  whole  or  in 


516  INTERNATIONAL  LAW   CODIFIED 

part,  because  its  findings  autl  dispositive  conclusions  were  in 
opposition  to  the  constitutional  law  of  the  country,  or  (c)  that  it 
should  demand  its  revision  on  the  grounds  stated  in  rule  1359. 
In  that  case,  even  if  the  faculty  of  applying  for  revision  should  not 
have  been  reserved  in  the  ''compromis,''  the  appeal  could  not  be 
rejected  by  the  Conference,  which  would  be  competent  under  rule 
1240,  paragraph  c. 

GROUNDS    OF    NULLITY    OF   AN    ARBITRAL   AWARD 

1379.  An  arbitral  award  shall  be  deemed  null  and  void  : 

(a)  If  the  decision  was  not  made  with  the  co-operation  of  all  the 
arbitrators  designated  to  constitute  the  tribunal  of  arbitration; 

(b)  If  it  wholly  lacks  reasons  both  in  fact  and  in  law; 

(c)  If  the  dispositive  part  is  contradictory; 

(d)  If  it  was  not  drawn  up  in  writing  and  signed  by  all  the  arbi- 
trators, or  if  the  omission  to  sign  by  one  of  them  is  not  recorded 
in  the  minutes,  establishing  the  presence  of  the  arbitrator  who  did 
not  sign  and  his  presence  at  the  time  of  the  decision  and  vote. 

This  rule  is  strictly  in  accord  with  that  formulated  in  our  first  edition  (1890) 
and  in  the  two  following  ones  (1S9S  and  1900). 

We  hold  that  the  arbitral  award  must  be  deemed  null  and  void  if  it  implies  a 
manifest  contradiction  in  its  dispositive  clauses,  that  is  to  say,  if  the  tribunal 
has  ordered  something  quite  contrary  to  another  thing  also  ordered.  It  is 
difficult  to  understand -how  Merignhac,  in  his  notable  book  on  Arbitration, 
ascribes  to  us  an  opinion  that  we  never  held,  when  he  states  in  §  328,  page  311: 
"M.  Fiore  proposes  to  reject  an  award  whose  character  is  equivocal";  but, 
while  criticising  me,  he  fails  to  cite  the  page  of  my  work  containing  the  opinion 
which  he  gratuitously  attributes  to  me. 

1380.  The  arbitral  award  may  be  impugned  by  either  of  the 
parties  in  dispute  and  may  be  annulled : 

(a)  If  the  arbitrators  in  their  award  have  transcended  the  limits 
of  the  "cotyipromis, "  or  have  made  an  award  under  a  "compromis^^ 
null  and  void  or  which  ought  to  l)e  considered  as  annulled ; 

(6)  If  it  was  pronounced  by  a  person  who  did  not  possess  the 
legal  capacity  for  sitting  as  an  arbitrator  or  had  become  legally 
incompetent  to  act  in  such  capacity  while  the  case  was  pending, 
or  by  an  arbitrator  legally  unqualified  to  replace  another  who  was 
absent ; 

(c)  When,  upon  proof  duh^  furnished,  the  award  must  be  con- 


INTERNATIONAL   ARBITRATION  ol7 

sidered  either  as  based  on  error,  or  as  having  been  extorted  by 
deceit  or  violence; 

(d)  When  the  dishonesty  of  one  of  the  arbitrators  can  be  fully 
proved ; 

(e)  When  the  forms  of  procedure  stipulated  in  the  "comprot72is'' 
on  pain  of  nullity,  or  those  which  are  established  under  conven- 
tional "common"  law  and  which  the  parties  have  not  expressly 
declared  their  desire  to  exclude,  or  those  which  must  be  regarded 
as  indispensable  under  the  general  principles  of  international  law, 
have  not  been  observed. 

Of  course  the  rules  of  arbitral  procedure  accepted  by  the  states  which  have 
signed  the  Convention  of  1007,  must  l)e  deemed  binding  on  those  states,  when 
in  a  "compromis"  concluded  between  themselves  they  have  not  stipulated 
for  the  application  of  other  rules. 

ACTION    IN    CLAIM    OF   NULLITY    OR   ANNULMENT 

1381.  The  claim  of  nullity  or  for  annulment  on  the  part  of  the 
state  which  advances  this  plea  as  a  ground  for  refusing  to  execute 
an  arbitral  award  must  be  made  before  the  Conference.  This 
also  applies  to  the  demand  of  the  party  requesting  the  revision 
of  the  award  in  the  case  contemplated  in  rule  1359. 

1382.  The  Conference  called  upon  to  decide  as  to  the  nullity  of 
an  award  must  in  fact  ascertain  whether  the  reasons  invoked  are 
well  founded  and  pronounce  the  award  null  according  to  law. 

In  case  of  a  demand  in  annulment,  it  must  be  examined  accord- 
ing to  law  to  determine  whether  the  reasons  invoked  are  meritori- 
ous and  the  Conference  must  t  hen  decide  whether,  considering  the 
circumstances  and  evidence  adduced,  the  annulment  of  the  award 
should  or  should  not  be  pronounced. 

1383.  When  the  Conference  denies  the  appeal  in  annulment  and 
confirms  the  award,  it  may  order  recourse  to  the  means  calculated 
to  compel  the  party  to  observe  and  execute  the  award. 

When,  on  the  other  hand,  it  recognizes  the  claim  as  well-foimded 
and  admits  the  nullity  or  annulment  of  the  award,  it  shall  have  the 
right  to  order  a  new  arbitration,  providing,  if  necessary,  for  the 
proper  constitution  of  the  tril)unal  of  arbitration. 


518  INTERNATIONAL   LAW    CODIFIED 

SUSPENSION    OF   THE    EXECUTION    OF   THE   AWARD 

1384.  The  suspension  of  the  execution  of  the  arbitral  award  may 
be  authorized  by  the  Conference  as  a  consequence  of  the  appeal  of 
either  party  under  rule  1378  during  the  time  allowed  for  its  consid- 
eration of  the  award. 

Should  the  Conference  report  favorably  on  the  request  for  re- 
vision of  the  award,  its  decision  would  naturally  suspend  the  exe- 
cution thereof,  and  it  would  then  be  necessary  to  consider  the  effect 
and  provisions  of  the  revised  award. 

1385.  Changes  occurring  in  the  political  constitution  of  a  state 
do  not  constitute  a  sufficient  reason  for  suspending  the  execution 
of  an  arbitral  award,  so  long  as  the  international  personality  of 
such  state  subsists.  If,  however,  the  new  political  constitution  of 
the  state  should  render  the  award  impossible  of  execution,  the 
party  required  to  do  something  which,  owing  to  changed  condi- 
tions, it  is  quite  impossible  for  it  to  do  should  leave  it  to  the  same 
arbitral  tribunal  to  determine  what  alternative  course  should  be 
pursued. 


I 
; 


TITLE  V 

COERCIVE  MEANS  IN  TIME  OF  PEACE 

WHEN   RECOURSE   TO   COERCIVE   MEANS   IS   JUSTIFIABLE 

1386.  No  state  whose  rights  have  been  violated  or  whose  inter- 
ests have  been  prejudiced  by  another  state,  can  have  recourse  to 
violence  against  that  state,  except  after  resort  to  all  pacific 
means,  such  as  diplomatic  negotiations,  good  offices,  and  media- 
tion, in  order  to  obtain  satisfaction  for  the  injury  sustained. 

1387.  When  the  state  which  has  sustained  injury  and  demands 
satisfaction  therefor  can  submit  its  claim  to  arbitration,  it  must  be 
considered  as  bound  to  initiate  the  arbitration,  in  accordance  with 
the  rules  laid  down  in  the  preceding  title. 

1388.  Indirect  coercive  means  may  be  deemed  lawful  only  as  to 
certain  international  differences  of  a  political  character,  but  not  as 
to  those  of  a  legal  nature,  which  must  be  settled  in  accordance 
with  the  rules  prescribed  in  the  preceding  title. 

1389.  It  is  highly  desirable  that,  in  order  to  reduce  to  a  mini- 
mum the  possibility  of  recourse  to  violent  means  for  the  settle- 
ment of  an  international  dispute,  civilized  states,  in  controversies 
of  a  political  nature,  should  first  publicly  set  forth  their  respective 
claims  in  the  matter  at  issue  before  resorting  to  violent  means  for 
its  settlement.  It  will  be  expedient  for  this  purpose  that  the  state 
alleging  to  be  injured  shall  set  forth  in  a  diplomatic  note  the  rea- 
sons upon  which  it  bases  its  claims,  thus  making  it  necessary  for 
the  adverse  party  to  justify  its  conduct,  and  in  this  way  clearly 
present  the  dispute  before  the  bar  of  public  opinion. 

The  rules  that  we  suggest  tend  to  prevent  civiUzed  states  from  considerinjr 
themselves  both  judges  and  parties,  and  to  obhgate  them  to  do  everything 
possible  toward  preserving  their  peaceful  relations. 

We  admit,  in  principle,  that  a  state  whose  sovereign  rights  and  dignity  have 
been  assailed  is  entitled  to  obtain  satisfaction  therefor,  and  we  further  acknowl- 
edge that  recourse  to  arbitration  in  such  cases  does  not  readily  commend  itself 
as  a  proper  or  satisfactory  means  of  redress.  We  believe,  however,  that  a 
peaceful  settlement  of  the  difference  is  advisable,  if  it  can  be  effoctod  with 

519 


520  INTERNATIONAL    LAW    CODIFIED 

honor,  and  before  resorting  to  warlike  measures  it  is  well  that  all  points  in  the 
controversy  should  be  publicly  proclaimed. 

The  mysterious  power  of  public  opinion, — now  that  the  telegraph  and  other 
modern  means  of  communication  inform  us  almost  with  the  swiftness  of 
thought  of  what  is  haj^pening  at  the  farthest  end  of  the  world — is  becoming 
greater  day  by  day;  and  with  it,  there  is  developing  the  sentiment  of  solidarity 
of  civilized  peoples.  So  it  will  be  deemed  the  common  interest  of  nations  thus 
to  assure  peace  and  leave  undisturbed  the  legal  order  of  the  international 
society.  Public  opinion,  within  a  state,  may  be  perverted  and  corrupted  by  the 
machinations  of  contending  political  partisans;  but  that  of  the  civilized  world 
remains  always  impartial,  because  it  is  impersonal  and  disinterested.  The 
moral  influence  that  tlie  press  can  exercise  will  continue  to  increase  with  civili- 
zation, and  will  be  all  the  more  effective  with  the  greater  participation  of  the 
representatives  of  the  people  in  the  direction  of  public  affairs  and  in  the  shap- 
ing of  foreign  policy.  Diplomacy,  being  no  longer  compelled  to  act  secretly 
in  a  cloud  of  mystery,  and  the  policy  of  a  state  being  frankly  made  known  to  the 
public,  it  will  hardly  be  possible  for  politics  to  continue  to  prevail  over  right 
and  for  governments  for  political  ends  to  disturb  with  impunity  the  peace  of 
the  international  society. 


LAWFUL  COERCIVE   MEANS 

1390.  The  coercive  means  permitted  in  time  of  peace  are  those 
which  have  the  character,  properly  speaking,  of  forced  restraint 
but  which  must,  nevertheless,  be  regarded  as  indirect  means  of 
compelling  a  state  to  make  amends  for  an  offense  or  for  an  injury 
done. 

These  measures  are: 
(a)  Retorsion; 
(6)  Reprisals; 

Direct  coercive  means  must  also  be  deemed  permissible  when 
they  are  authorized  by  the  Congress  or  initiated  by  the  Conference. 
These  are: 

(a)  Collective  intervention; 
(6)  Commercial  blockade. 

RETORSION 

1391.  Retorsion  consists  in  certain  acts  of  violence  committed 
by  a  state  which  has  sustained  injury  by  another  state,  the  acts 
being  designed  to  compel  such  state  to  desist  from  its  wrongful 
violation  of  the  rights  or  interests  of  the  country  or  of  its  citizens. 

Retorsion  may  be  deemed  lawful,  provided  it  is  not  contrary 
to  legal  order. 


COERCIVE    MEANS    IN   TIME    OF    PEACE  521 

1392.  Any  state  which  does  not  respect  the  rules  resting  upon 
the  comitas  gentium,  equit}-  or  the  principles  of  natural  justice, 
has  no  right  to  complain  because  another  state,  injured  by  its 
unlawful  acts,  retaliates  in  like  manner  in  order  to  safeguard  its 
rights  and  interests  and  those  of  its  citizens. 

The  basis  of  these  rules  is  the  well-known  principle  of  the  praetor  Octavius, 
contained  in  the  Perpetual  Edict: 

''Quod  quiaque  juris  in  alteruni  statuerit  et  ipse  eodemjure  utatur." 
Thus,  if  a  state  provides  strict  measures  against  foreigners  and  subjects 
them  to  the  payment  of  heavy  taxes  either  for  the  privilege  of  residing  on  its 
territory,  engaging  in  business,  or  acquiring  and  transmitting  property,  it  has 
no  ground  for  complaint  if  other  states,  wishing  to  protect  the  interests  of 
their  citizens,  employ  similar  means  or  even  more  rigorous  measures  against 
its  citizens  in  order  thus  indirectly  to  compel  it  to  modify  its  injurious  conduct. 
The  same  would  be  true  if  a  state  were  radically  to  increase  its  customs  tar- 
iffs or  in  any  other  way  exercise  its  sovereign  rights  so  as  to  impair  the  freedom 
of  commerce  or  navigation  over  its  territorial  waters. 

1393.  It  ought  to  be  considered  legitimate  retorsion  for  a  gov- 
ernment to  interpret  restrictively  an  extradition  treaty  under 
which  the  other  contracting  party  has  refused  it  extradition,  and 
in  analogous  cases  to  refuse  to  deliver  criminals  over  to  that  state. 
In  like  manner,  courts  may  have  recourse  to  retorsion  in  interpret- 
ing laws  which  require  reciprocity. 

1394.  No  state  can  rely  upon  the  right  of  retorsion  in  order  to 
violate  the  rights  of  private  individuals,  or  to  infringe  upon  the 
principles  of  "common"  law,  on  the  ground  that  the  other  state 
has  violated  those  rights  or  principles  to  its  injury. 

Retorsion  may  be  justified  only  when  the  act  of  violence  is  not  contrary  to 
the  legal  order.  Its  object  may  be  to  prevent  a  foreign  state  from  exercising 
its  rights  in  violation  of  the  principles  of  equity.  Unquestionably,  retorsion 
cannot  legitimate  retaliation,  nor  permit  the  commission  of  a  palpable  wrong 
against  a  state  guilty  of  a  similar  wrong,  to  its  injury.  Modern  international 
law  provides  for  the  repression  of  arbitrary  violations  of  the  legal  order  through 
the  effective  means  set  forth  in  the  preceding  title.  Therefore  a  state  can  never 
be  permitted  to  violate  the  laws  of  the  international  society  on  the  mere  ground 
that  another  state  has  so  acted  toward  it. 

1395.  It  is  to  the  interest  of  states  and  in  accord  with  political 
foresight  to  limit  somewhat  the  field  of  retorsion  in  order  to  avoid 
fomenting  hostile  tendencies  in  the  relations  between  states;  re- 
course to  such  a  measure  should  only  be  had  when  prudent  diplo- 
matic action  has  been  unable  satisfactorily  to  modify  or  dispose  of 
an  injurious  condition  of  affairs. 


522  INTERNATIONAL   LAW   CODIFIED 

REPRISALS 

1396.  Reprisals  consist  in  coercive  measures  resorted  to  by  one 
state  against  another  state  with  a  view  to  obtaining  from  the 
latter  reparation  for  an  injury  or  offense,  or  terminating  a  state  of 
affairs  contrary  to  "common"  law. 

Reprisals  consist  in  measures  of  violence  based  upon  acts  more  serious  than 
those  legitimating  retorsion.  Such  acts  are  not  in  reality  an  arbitrary  viola- 
tion of  law,  but  rather  an  irregular  and  discourteous  manner  of  exercising  a 
state's  right.  On  the  other  hand,  the  facts  which  give  rise  to  reprisals  are 
contrary  to  the  legal  order,  as,  for  instance,  the  arbitrary  occupation  of  foreign 
territory,  the  refusal  to  pay  a  debt,  the  refusal  to  make  reparation  for  an  offense 
or  injury,  etc. 

1397.  Reprisals  may  be  justified  when  by  their  nature  and 
manner  of  execution  they  are  not  manifestly  opposed  to  the  legal 
organization  of  the  international  society. 

1398.  The  act  of  reprisal  cannot  be  deemed  contrary  to  the 
legal  organization  of  the  international  society  whenever  its  aim 
is  directly  to  injure  the  rights  of  the  state  or  to  cause  it  a  direct 
or  immediate  damage  with  a  view  to  obtaining  reparation  of  some 
damage  or  offense  committed  by  it,  although  this  act  of  violence 
may  indirectly  be  prejudicial  to  its  citizens. 

Any  act  of  reprisal  shall  be  deemed  contrary  to  the  legal  order 
which  injures  directly  the  rights  of  private  individuals  guaranteed 
by  international  law  or  tends  to  cause  a  direct  and  immediate  prej- 
udice to  private  individuals,  although  accomplished  with  the 
intention  of  indirectly  punishing  the  state. 

This  rule  aims  at  consecrating  the  inviolability  of  private  property  and  pro- 
tecting the  international  rights  of  persons,  by  expressly  prohibiting  direct 
injury  to  private  persons  or  property  through  reprisals  in  order  thus  to  strike 
indirectly  at  the  state  of  which  those  individuals  are  citizens.  The  citizens 
of  a  state  are  bound  uti  universitas  and  not  uti  singuli,  to  bear  the  burdens  of 
the  state  in  its  international  relations.  Si  quid  universitati  debetur  singulis 
non  debetur,  nee  quod  debet  universitas  singuli  debent.  This  maxim  finds  its 
true  application  in  the  sense  that  citizens  are  responsible  for  the  international 
obligations  of  the  state,  but  are  not  individually  liable:  Reprcpsalius  in  singulos 
cives  alicujus  civitatis  non  dari  ob  sponsionem  et  debitum  ipsius  civitatis. 

During  Cromwell's  time,  an  English  merchant  ship  had  been  captured  on 
the  coast  of  France  and  confiscated  without  just  grounds.  The  owner  re- 
quested the  protection  of  his  government  and  Cromwell  addressed  a  note  to 
Mazarin  in  which  he  demanded  compensation,  within  three  days,  for  the 
Englishman  who  owned  the  ship  and  cargo  wrongfully  confiscated.  No  heed 
having  been  paid  to  this  request,  Cromwell,  without  any  further  diplomatic 
negotiations,  ordered  two  English  ships  of  war  to  seize  any  French  merchant 


COERCIVE    MEANS    IN   TIME    OF    PEACE  523 

ships  found  in  the  English  channel.  The  war  vessels  returned  to  English  ports 
with  their  prizes  and  Cromwell  had  the  captured  vessels  sold  with  their  car- 
goes, paid  out  of  the  proceeds  what  was  due  to  the  injured  Englishman  and 
sent  the  surplus  to  Mazarin.  It  is  beyond  question  that  such  flagrant  acts  are 
quite  incompatible  with  the  principles  recognized  under  the  international  law 
of  our  time. 

1399.  The  following  shall  be  considered  as  legitimate  acts  of 
reprisal  without  a  declaration  of  war. 

(a)  The  refusal  to  pay  a  debt  or  obligation  due  to  the  state; 

(b)  The  seizure  of  property  belonging  to  the  state; 

(c)  The  interruption  of  commercial,  postal,  and  telegraphic 
relations  established  under  ''common"  law; 

(d)  The  suspension  of  all  treaties  or  of  some  of  them; 

(e)  The  withdrawal  of  certain  rights  belonging  to  the  state  ac- 
cording to  ''common"  law,  provided  it  is  not  one  of  the  fundamen- 
tal rights  in  the  absence  of  which  the  international  personality 
of  the  state  would  no  longer  exist.  Thus,  a  state  could  be  deprived 
of  the  right  of  representation  or  of  maintaining  consulates; 

(/)  The  closing  to  a  state  and  to  its  citizens  of  certain  ports  open 
to  commerce,  or  the  prohibition  of  exporting  goods  absolutely 
essential  to  the  state; 

(g)  Expulsion  of  the  citizens  of  a  foreign  state,  provided  it  has 
denied  freedom  of  residence  or  has  expelled  nationals; 

(h)  Denial  of  the  privileges  and  immunities  granted  to  citizens 
of  the  foreign  state; 

(i)  Arrest  of  the  public  officers  of  a  foreign  state,  if  it  has  ar- 
rested some  officer  of  the  state,  or  has  denied  him  the  right  freely 
to  leave  the  foreign  territory  in  order  to  return  to  his  own  country; 

(j)  Any  other  form  of  coercive  measure  authorized  by  the  Con- 
gress or  by  the  Conference  as  reprisals. 

Recourse  to  reprisals,  as  understood  and  admitted  up  to  the  present  time, 
is  inconsistent  with  the  principles  that  must  govern  the  legal  organization  of 
the  international  society.  The  most  powerful  states  have  admitted  that,  by 
taking  advantage  of  their  strength,  it  is  possible  for  them  to  take  the  law  into 
their  own  hands  and  thus  imjiose  their  pretensions  upon  weaker  states,  if 
neces.sary  by  armed  force;  while  the  use  of  these  violent  measures  on  their 
part,  legitimated  as  reprisals  in  time  of  peace,  did  not  bring  to  an  end  the  state 
of  peace  and  the  application  of  the  international  law  in  force  in  time  of  peace. 
Thus,  they  have  come  to  the  point  of  justifying  the  use  of  any  coercive  means 
imposed  by  armed  force,  in  order  either  to  obtain  justice  in  their  own  right,  or 
to  protect  the  interests  of  nationals,  or  to  compel  a  government  to  pay  con- 
tractual debts  claimed  by  private  persons,  and  similar  ends.  As  to  this  last 
point,  the  Hague  Convent if)n  of  1007  (the  second  of  the  General  Act)  relating 


524  INTERNATIONAL   LAW    CODIFIED 

to  the  limitation  of  the  use  of  armed  force  in  the  collection  of  contract  debts 
denies  that  reprisals  can  be  justified  on  any  such  ground. 

Article  1  of  this  Convention  reads: 

"The  Contracting  Poiccrs  agree  not  to  have  recourse  to  arvied  force  for  the  re- 
covery of  contract  debts  claimed  from  the  Government  of  one  country  by  the  Govern- 
ment of  another  country  as  being  due  to  its  nationals.  This  undertaking  is,  how- 
ever, not  applicable  when  the  debtor  stale  refuses  or  neglects  to  reply  to  an  offer 
of  arbitration,  or,  after  accepting  the  offer,  prevents  any  'compromis'  from  being 
agreed  on,  or,  after  the  arbitration,  fails  to  submit  to  the  award." 

This  Convention  thus  limits  the  principle  which  had  prevailed  until  1907 
that  the  state  might  employ  force  to  obtain  its  alleged  rights.  Yet  it  is  to  be 
noted  that  the  provision  contained  in  the  second  paragraph  still  admits  the  use 
of  armed  force  in  the  cases  therein  stated.  Should  our  propositions  concerning 
compulsory  arbitration  and  the  use  of  coercive  means  be  accepted,  it  would 
result  in  eliminating  recourse  to  armed  force  in  time  of  peace  wthout  first 
resorting  to  all  legal  means  calculated  to  prevent  the  violation  of  law. 

The  Convention,  which  bears  the  date  of  October  18th,  1907,  was  not  ac- 
tually signed  until  June  30,  1908,  with  numerous  reservations.  By  carefully 
examining  these  reservations,  it  will  enable  one  better  to  appreciate  the  rules 
that  we  propose,  the  object  of  which  is  to  assure  the  sovereignty  of  law  in  the 
international  society. 

1400.  It  cannot  be  deemed  permissible  to  resort  to  reprisals 
without  first  attempting  to  settle  the  differences  by  diplomatic 
negotiations  and  other  measures  recognized  by  international  law. 

1401.  In  questions  of  a  legal  nature  which  in  case  of  dispute 
might  constitute  the  object  of  an  arbitration,  recourse  to  reprisals 
must  be  deemed  inadmissible. 

1402.  Every  civilized  state  is  bound  not  to  have  recourse  to 
reprisals  in  order  to  assert  its  rights  when  it  can  make  use  of  ordi- 
nary means  to  obtain  recognition  thereof. 

1403.  When  a  state  can  be  held  responsible  for  an  offense  com- 
mitted against  the  dignity  or  honor  of  another  state  and,  although 
invited  to  give  proper  satisfaction  it  declines  to  do  so  and  by 
subterfuge  seeks  to  evade  its  obligation,  the  offended  state  may 
with  justice  resort  to  reprisals  to  compel  it  to  make  satisfactory 
amends. 

In  such  case,  the  nature  and  extent  of  the  reprisals  must  be 
proportionate  to  the  seriousness  of  the  offense. 

Offenses  against  the  dignity  and  honor  of  a  state  cannot  be  the  object  of  an 
arbitration,  and  the  reparation  required  cannot  be  long  deferred.  Should 
diplomatic  negotiations  prove  of  no  avail,  the  offended  state  may  then  resort 
to  reprisals.  In  that  case,  it  is  permissible  to  present  a  claim  supported  by 
armed  force  and  by  the  threat  of  a  declaration  of  war  formulated  as  an  ulti- 
matum. 

The  right  of  legitimate  defense  must  be  admitted  between  states,  and, 


COERCIVE   MEANS   IN   TIME   OF   PEACE  525 

when  honor  and  dignity  are  involved,  it  is  futile  to  prolong  matters  by  detailed 
procedure  in  order  to  obtain  what  may  properly  be  exacted  without  delay. 

Nevertheless,  we  believe  it  to  be  essential  that  a  public  presentation  of  the 
circumstances  of  the  case  should  be  made  in  conformity  with  rule  1389, 


THE   SEIZURE    OF   MERCHANT   SHIPS   OR   EMBARGO 

1404.  The  seizure  of  the  merchant  ships  of  a  state,  lying  in  the 
ports  of  another  state  claiming  to  have  a  cause  of  complaint,  can- 
not be  deemed  a  lawful  form  of  reprisals. 

An  embargo  laid  upon  these  ships  in  order  thus  to  compel  a 
state  to  satisfy  the  claims  of  the  seizing  state  must  be  regarded  as 
absolutely  contrary  to  the  principles  of  international  law. 

It  has  been  sought  to  justify  the  seizure  of  merchant  ships  of  a  state,  against 
which  a  claim  is  asserted,  as  a  reprisal,  permissible  in  time  of  peace,  in  order 
thus  to  compel  it  to  satisfy  claims  directed  against  it. 

This  pernicious  measure  is  currently  called  embargo  (a  Spanish  word,  de- 
rived from  the  verb  embargar,  to  seize).  History  furnishes  numerous  instances 
of  such  a  measure  having  been  taken  in  the  ports  of  a  state  having  grievances 
against  the  state  to  which  the  ships  belonged  and  which  it  threatened  with  war 
and  confiscation  of  the  ships  if  the  demands  of  the  claimant  state  were  not 
satisfied.    Cf.  Pradier-Fodere,  Droit  inlemalional,  v.  5,  §  2478. 

We  consider  this  coercive  measure  as  absolutely  unjustifiable.  The  property 
of  private  persons,  which  ought  to  be  held  inviolable  in  time  of  war,  should 
certainly,  and  with  even  more  reason,  be  regarded  as  sacred  in  time  of  peace. 
Therefore,  embargo  of  merchant  vessels  must  be  considered  to  be  a  violation 
of  the  principles  of  international  law. 

We  shall  refer  hereafter  to  embargo  as  a  police  measure  in  case  of  an  impend- 
ing declaration  of  war.     (See  rule  1449.) 


INTERVENTION    IN    CASE    OF    LEGITIMATE   INTERFERENCE 

1405.  Intervention  in  eases  of  legitimate  interference  can  only 
be  justified  when  it  has  been  authorized  by  the  Congress  as  a 
coercive  measure  against  a  state  which  has  violated  the  principles 
of  international  law  or  the  rules  proclaimed  by  the  Congress  as 
conventional  laws  of  the  states  constituting  the  international 
society. 

One  of  the  most  noteworthy  cases  of  intervention  under  (he  principles  which 
may  justify  collective  interference  for  the  purpose  of  regulating  the  internal 
affairs  of  a  state  and  to  assure  order  therein,  without  infringing  the  j)rinciplc 
of  sovereignty  and  independence,  is  that  provided  for  by  the  Algeciras  (Confer- 
ence with  respect  to  Moro('co.  France  and  Spain  were  entrusted  with  the 
execution  of  the  measures  adopted  in  common  accord  in  the  General  Act  of 
April  7,  190(j,  which  was  signed  by  Austria-Hungary,  Belgium,  France,  Cier- 


526  INTERNATIONAL  LAW   CODIFIED 

many,  Great  Britain,   Italy,   Morocco,  the  Netherlands,  Portugal,  Russia, 
Spain,  Sweden  and  the  United  States. 

1406.  The  intervention  thus  authorized  can  only  have  as  its 
object  the  assurance  of  respect  for  international  law  and  the  re- 
pression of  violations  thereof. 

1407.  Intervention  as  a  coercive  measure  ordered  by  the  Con- 
gress can  take  place  whenever,  in  accordance  with  rules  556-562, 
collective  interference  is  legitimate  and  necessary  to  enforce  re- 
spect of  international  law. 

Considering  the  fundamental  principle  that  states  constituting  the  inter- 
national society  are  jointly  and  severally  concerned  in  the  maintenance  of  the 
legal  organization  of  that  society,  it  logically  follows  that  after  peaceful  means 
have  proved  ineffectual  to  bring  to  an  end  a  state  of  affairs  antagonistic  to  such 
organization,  recourse  to  coercive  measures  is  required.  In  order,  however, 
to  determine  their  advisability  and  regulate  their  employment,  the  judgment 
of  a  superior  authority  is  necessary. 

To  allow  one  or  more  states  independent  authority  to  decide  and  act  in  that 
respect  would,  manifestly,  be  unwise  and  would  open  the  way  to  arbitrary 
acts,  inspired  perhaps  by  selfish  or  interested  motives.  Therefore,  we  deem 
the  intervention  of  the  Congress  and  its  authorization  as  an  indispensable 
prerequisite  to  order  and  regulate  collective  interference. 

We  cannot  share  the  opinion  of  Rivier,  who  would  recognize  friendly  inter- 
vention (v.  II,  §  58),  nor  that  of  Oppenheim,  who  favors  the  intervention  of  a 
state  as  a  sort  of  dictatorial  interference  to  end  a  conflict.  {International  Law, 
V.  II,  §§  50  et  seq.) 

1408.  When  the  Congress  has  authorized  intervention,  the 
state  or  states  which  have  been  entrusted  with  the  mission  of 
employing  coercive  measures  against  the  culpable  state,  must  ob- 
serve the  rules  established  by  the  Congress  which  commands 
them,  and,  in  all  matters  not  covered  by  special  instructions,  must 
comply  with  the  general  principles  of  international  law. 


COMMERCIAL    BLOCKADE 

1409.  Commercial  blockade,  called  pacific  blockade,  consists 
in  the  investment  of  a  port  or  coast  of  a  state,  effected  and  main- 
tained by  means  of  a  number  of  ships  of  war  sufficient  for  prohibit- 
ing access  thereto  or  egress  therefrom,  and  designed  to  interrupt 
completely  the  relations  and  especially  commercial  transactions 
between  the  citizens  of  the  state  or  states  which  have  declared  the 
blockade  and  the  state  against  which  this  coercive  measure  is 
employed. 


COERCIVE   MEANS   IN   TIME    OF   PEACE  527 

1410.  Commercial  blockade  can  only  be  considered  lawful  when 
authorized  by  the  Congress  as  a  coercive  measure  directed  against 
a  state  of  the  international  society  guilty  of  violating  the  conven- 
tional law  proclaimed  by  the  Congress,  or  against  a  state  not  a 
member  of  that  society  in  case  of  serious  infringement  of  the  prin- 
ciples of  international  law. 

1411.  The  purpose  of  commercial  blockade  must  be  to  prevent 
the  importation  and  exportation  of  any  kind  of  merchandise 
through  the  port  or  ports  of  the  state  against  which  it  has  been 
ordered  and  effectively  maintained,  and  thus  to  cause  real  damage 
to  the  culpable  state,  in  order  to  compel  it  to  remedy  the  unlawful 
conditions  which  caused  the  blockade  to  be  instituted. 

1412.  Commercial  blockade  in  time  of  peace  cannot  have  the 
same  legal  character  as  in  time  of  war.  Consequentl}^  it  cannot 
assmiie  all  the  privileges  which  legitimately  belong  to  belligerents 
during  war,  but  only  such  rights  as  are  compatible  with  the  purpose 
of  such  coercive  measure. 

There  has  been  much  discussion  as  to  the  legitimacy  of  blockade  in  time 
of  peace,  and  manj^  authors  have  contended  that  it  could  not  be  regarded  as 
a  regular  coercive  measure  according  to  international  law.  Such  is  the  view 
of  Fauchille,  Du  blocus  maritime,  pp.  38  et  seq.;  of  Geffken,  Revue  de  droit  in- 
ternational, 18S7;  of  Testa,  Le  Droit  public  international  maritime,  p.  229;  of 
Woolsey,  International  Law;  of  Gessnerj  Le  droit  des  neutres  sur  mer;  of  Pradier- 
Fodere,  Droit  international  public,  v.  5,  §§  2483  et  seq.;  of  Bonfils,  5th  Ed.,  p. 
992;  and  of  Martens,  v.  3,  p.  175. 

The  opposite  view  also  has  its  partisans,  among  whom  we  may  cite  Heffter, 
Droit  international,  §  111;  Bulmerincq,  Journal  du  droit  international  prive, 
1888,  p.  569;  Annuaire  of  the  Institut  de  droit  international,  1887;  Perels, 
Manuel  de  droit  maritime  (Arendt's  translation),  §  30,  p.  ISO;  Rolin  Jacque- 
myns.  Revue  de  droit  international,  1876,  pp.  618,  623;  Wharton,  International 
Law  Digest,  §  364;  Fiore,  Diritto  inter nazionale  pubblico,  2d  ed.,  1884,  trans- 
lated into  French  by  Ch.  Antoine,  §  1629,  and  3d  ed.,  1888,  §  1324;  Oppen- 
heim.  International  Law,  §  44.  Cf.  Calvo,  Le  droit  international,  who  cites 
many  historical  facts  and  the  opinions  of  several  publicists  in  his  4th  edition, 
v.  3,  §§  1832  et  seq.    [See  also,  Hogan,  Pacific  blockade,  London,  1908 — Transl.] 

It  seems  to  us  that  the  principal  reason  for  the  controversy  lies  in  the  fact 
that  no  clear  distinction  is  made  between  the  legal  character  of  the  blockade 
used  as  a  coercive  measure  in  time  of  peace  and  that  of  the  blockade  as  prac- 
ticed in  time  of  war.  Certainly  blockade,  with  all  the  rights  it  confers  upon  the 
belligerent  against  the  enemy  and  with  respect  to  neutrals,  can  only  properly 
exist  when  war  is  declared.  To  admit  blockade  as  an  operation  of  war  in  the 
absence  of  a  state  of  war  would  be  a  true  anomaly.  This  anomaly  disappears 
when  the  line  is  clearly  drawn  between  the  two  kinds  of  blockade  and  when  it 
is  considered  that  the  states  constituting  the  international  society  cannot  be 
denied  the  right  to  utilize  coercive  means  against  a  member  state  and  to  cause 
it  a  certain  prejudice  in  order  to  compel  it  by  force  to  submit  to  the  decision 


528  INTERNATIONAL  LAW   CODIFIED 

of  the  Congress.      Now,  commercial  blockade  is  one  of  these  coercive  means 
the  employment  of  which  is  manifestly  less  harmful  than  war. 

As  regards  states  which  do  not  belong  to  the  international  society,  commer- 
cial blockade  can  be  justified  in  case  they  seriously  violate  the  principles  of 
international  law,  which  must  be  deemed  under  the  collective  protection  of 
civilized  states  in  so  far  as  it  consecrates  the  rules  that  are  indispensable  for 
assuring  the  relations  of  states  in  the  international  society. 

1413.  It  is  the  duty  of  the  Congress  which  has  ordered  a  com- 
mercial blockade  to  publish  notice  thereof  through  diplomatic 
channels;  to  fix  the  date  on  which  it  shall  take  effect;  to  determine 
on  what  coast  and  against  which  ports  it  shall  extend;  to  grant  a 
reasonable  time  limit  to  all  ships  which  may  have  entered  the  ports 
before  the  declaration  of  blockade  to  complete  their  operations 
and  depart  therefrom;  and,  finally,  to  determine  which  state 
shall  enforce  the  blockade. 

EFFECTIVENESS  OF  THE  BLOCKADE 

1414.  A  commercial  blockade  is  only  effective  from  the  time 
the  blockading  fleet  actually  invests  the  blockaded  port  or  ports 
with  a  force  sufficient  to  prevent  the  egress  or  entrance  of  ships. 

1415.  The  blockade  must  be  deemed  compulsory  and  must  be 
respected  by  all  the  vessels  of  the  merchant  marine  of  the  states 
constituting  the  international  society. 

It  may  also  be  applicable  to  third  powers,  if  this  has  been  ex- 
pressly stated  in  the  note  which  notified  the  blockade  diplomatic- 
ally. 

The  blockade  ordered  by  the  Congress  and  notified  through  diplomatic  chan- 
nels must  be  deemed  compulsory  upon  all  the  states  constituting  the  interna- 
tional society,  by  reason  of  the  authority  possessed  by  the  Congress  to  order 
recourse  to  coercive  measures  designed  to  assure  respect  for  the  laws  mutually 
adopted  by  the  states  in  question. 

It  may  likewise  be  effective  as  to  third  powers  by  imposing  upon  the  citizens 
of  those  powers  the  prohibition  of  egress  from  or  entrance  to  the  blockaded 
ports  by  any  ships,  and  this  by  virtue  of  the  community  of  interest  on  the 
part  of  all  civilized  countries  in  safeguarding  the  principles  of  international 
law.  States  so  authorized  by  the  Congress  cannot  be  denied  the  right  forcibly 
to  exercise  control  over  the  territorial  waters  of  the  state  against  which  the 
blockade  is  declared  so  as  to  punish  it  for  misdeeds  and  compel  it  to  respect 
international  law.  In  such  a  case,  without  declaring  war  upon  the  culpable 
state,  the  closing  to  commerce  of  some  or  all  of  its  ports  may  be  ordered  and 
universal  respect  for  the  blockade  induced,  not  by  virtue  of  the  rights  of  war, 
but  on  the  ground  of  effective  possession  of  its  territorial  waters  by  the  states 
which  have  forcibly  occupied  them  and  have  substituted  themselves  there  in 
the  exercise  of  the  rights  of  sovereignty  of  the  blockaded  state. 


COERCIVE    MEANS    IN    TIME    OF    PEACE  529 

The  states  which  maintain  an  effective  blockade  can  prohibit  the  ships  of  all 
countries  from  crossing  the  blockade  hne.  They  can  neither  punish  them, 
nor  subject  them  to  the  laws  of  war  applicable  in  case  of  breach  of  blockade, 
but  they  can,  under  the  conditions  determined  iu  the  following  rules,  prevent 
them  from  crossing  the  blockade  line. 

We  do  not  maintain  that  all  this  can  be  strictly  reconciled  with  the  freedom 
of  the  sea  and  the  liberty  of  navigation  in  time  of  peace.  We  acknowledge  it 
to  be  a  derogation  from  the  principles  upon  which  must  be  based  the  respect 
due  to  such  freedom,  and  for  that  reason  we  deem  the  authorization  of  the 
Congress  to  be  indispensable. 

Such  derogation,  as  an  exceptional  measure,  may  be  justified  if,  authorized 
as  a  coercive  means  less  disastrous  than  war,  it  may  serve  to  attain  the  same 
object. 

1416.  The  blockading  squadron  must  be  considered  as  author- 
ized to  prevent  merchant  vessels  from  crossing  the  blockade  line, 
adopting  the  least  injurious  means  of  compulsion. 

The  commander  of  each  of  the  war  ships  of  the  blockading  Heet, 
who  is  within  signaling  distance  of  a  merchant  ship  about  to  enter 
the  blockaded  zone,  must  request  her  to  stop,  observing  the  rules 
established  for  the  exercise  of  the  right  of  visit  and  search,  and 
notify  the  captain  not  to  cross  the  blockade  line.  Such  notification 
must  be  conveyed  by  an  officer  of  the  war  vessel  and  entered  on 
the  ship's  journal. 

1417.  Should  the  vessel  on  which  this  notification  has  been 
served  attempt,  nevertheless,  to  cross  the  blockade  line,  any  ship 
of  the  blockading  squadron  could  arrest  her,  adopting,  however, 
the  least  injurious  means. 

The  vessel  once  captured,  the  commander  of  the  blockading  fleet 
may  detain  her.  Should  the  culpable  vessel  give  sufficient  and 
satisfactory  guaranty  that  she  will  not  again  attempt  to  cross  the 
blockade  line,  the  commander  of  the  blockading  fleet  may  allow 
the  vessel  to  proceed;  otherwise,  he  shall  have  the  right  to  order 
the  seizure  of  the  captured  ship  and  detain  her  until  the  blockade 
is  raised. 

1418.  A  merchant  vessel  which  has  attempted  to  violate,  or 
which  has  actually  succeeded  in  violating  the  blockade  cannot  be 
subjected  to  capture,  nor  to  any  other  penalty  applicable  in  case 
of  breach  of  blockade  in  time  of  war;  such  vessel  must  be  restored 
to  her  owners  immediately  after  the  raising  of  the  blockade.  She 
cannot,  however,  claim  reparation  for  injury  arising  from  the 
seizure.  This  rule  will  also  apply  to  the  merchant  ships  of  the 
blockaded  state. 


530  INTERNATIONAL   LAW   CODIFIED 

The  rules  proposed  are  no  doubt  justifiable  with  respect  to  the  states  consti- 
tuting the  international  society  by  virtue  of  the  conventional  rules  adopted 
by  them  on  the  subject  of  commercial  blockade  in  time  of  peace.  As  to  the 
remaining  non-member  states,  regarding  which,  according  to  paragraph  2  of 
rule  1415,  we  consider  that  the  commercial  blockade  should  be  likewise  effica- 
cious, we  acknowledge,  at  the  same  time,  that  the  limitation  of  the  freedom  of 
commerce  and  navigation  is  not,  as  a  general  principle,  strictly  justifiable. 
We  observe,  however,  that  in  the  international  society,  states  must  sometimes 
suffer  certain  limitations  of  their  right  for  reasons  of  public  welfare,  as  private 
persons  do  in  civil  society.  Certain  limited  forms  of  expropriation  of  rights 
may  in  certain  cases  be  justified  by  supreme  necessities  or  general  welfare  and 
by  the  advisability  of  securing  the  best  results  and  of  avoiding  the  worst  in  the 
interest  of  the  community  and  of  the  Magna  civitas. 

1419.  When  a  ship  which  has  violated  the  blockade  belongs  to 
the  navy  of  a  state,  and  it  appears  that  she  has  entered  or  left  the 
blockaded  port  in  order  to  carry  on  a  commercial  operation,  she 
thereby  involves  the  responsibility  of  her  country. 

Commercial  blockade,  as  a  coercive  measure  resorted  to  without  completely 
breaking  off  peaceful  relations,  was  often  utilized  in  the  course  of  the  nine- 
teenth century.  A  noteworthy  example  is  the  blockade  of  the  coasts  of  Greece 
in  1827  by  the  fleets  of  France,  Great  Britain  and  Russia  in  order  to  cut  off 
communication  between  Turkey  and  the  army  of  Ibrahim  Pasha  which  was 
operating  in  Morea  [Peloponnesus].  In  1838,  a  French  squadron  blockaded 
the  ports  of  Mexico  and  took  possession  of  the  fortress  of  San  Juan  d'Ulloa, 
while  the  French  government  kept  on  asserting  its  pacific  intentions.  We 
need  not  mention  other  instances  of  pacific  blockade,  but  would  refer  the 
reader  to  the  following  works  where  this  subject  is  discussed:  Calvo,  4th  ed., 
V.  3,  §§  1832  et  seq.;  Bonfils-Fauchille,  §  987;  Pradier-Fodere,  v.  5,  §§  2483  et  seq. 

We  deem  it  expedient,  however,  to  note  that  pacific  blockade,  as  it  has  been 
understood  up  to  this  time,  is  nothing  but  a  deplorable  recognition  of  the  pre- 
ponderance of  force.  In  other  words,  the  strongest,  in  order  to  enforce  its 
claims,  resorts  to  the  simplest  measures,  such  as  reprisals  and  blockade,  and 
when  these  means  prove  inadequate,  confiscates  ships,  even  in  time  of  peace. 

When  can  recourse  be  had  to  pacific  blockade?  According  to  present  inter- 
national law,  the  answer  would  be,  when  the  Power  enforcing  it  has  sufficient 
strength  to  impose  it. 

In  1850,  a  certain  Pacifico,  a  Jewish  merchant,  who  claimed  to  be  a  British 
citizen  merely  because  he  was  born  at  Gibraltar,  and  demanded  indemnity 
from  Greece  for  the  loss  of  his  property,  instead  of  resorting  to  the  courts, 
succeeded  in  obtaining  the  diplomatic  protection  of  the  British  government. 
Lord  Palmerston,  head  of  the  British  cabinet,  insisted  that  Greece  should  pay 
the  indemnity  claimed,  and,  as  it  was  not  paid  promptly,  he  had  the  coast  of 
Greece  blockaded.  As  if  this  was  not  yet  sufficient,  he  granted  letters  of  re- 
prisal, had  Greek  vessels  in  the  open  sea  seized  and  declared  an  embargo  upon 
those  in  British  ports.  Great  Britain  won  her  point  only  because  she  was  the 
stronger  of  the  two  states  in  controversy;  but  it  is  impossible  to  find  a  princi- 
ple of  law  justifying  so  iniquitous  a  procedure,  which  was  condemned  by  the 
British  Parliament  itself  and  stigmatized  as  improper,  unjust,  and  brutal  by 
Lord  Stanley  in  the  House  of  Lords.    It  can  only  be  justified  on  the  ground 


COERCIVE    MEANS    IN    TIME   OF   PEACE  531 

that  in  the  international  society  as  constituted  to-day,  the  right  of  the  strongest 
is  always  the  better. 

According  to  the  principles  of  justice,  the  right  of  Greece  was  better  founded 
than  that  of  Great  Britain  in  the  particular  instance  cited.  Greece  alleged 
that  she  could  not  indemnify  the  claimant,  who  professed  to  have  suffered 
injury,  if  the  latter  did  not  present  his  claim  to  the  courts  of  Greece  which 
alone  could  determine  the  title  to  and  amount  of  the  indemnity.  Yet  Greece, 
because  she  was  the  weaker,  was  compelled  to  recede  from  her  contention, 
and  to  pay  what  was  required  of  her.  All  Europe  was  indignant  at  the  conduct 
of  Great  Britain,  but  no  third  Power  saw  fit  to  interpose  to  defend  the  right 
of  the  weaker  state. 

Thus,  until  this  day,  pacific  blockade  has  served  only  to  strengthen  the  arbi- 
trary dominance  of  the  more  powerful  states,  but  without  contributing  much, 
if  anything,  toward  assuring  the  reign  of  law  within  the  international  society. 


TITLE  VI 

THE  LAST  RECOURSE  FOR  JURIDICAL  PROTECTION. 

WAR 

WHEN   IS    WAR   JUSTIFIABLE? 

1420.  The  international  right  of  coercive  action  by  means  of 
armed  force  should  not  be  exercised  by  any  state  until  it  has  ex- 
hausted all  diplomatic,  legal  and  coercive  means  admitted  in  time 
of  peace  for  the  settlement  of  a  controversy  existing  between  itself 
and  another  state,  or  unless  the  nature  of  the  controversy  and 
special  circumstances  surrounding  it  render  immediate  action 
imperative.    The  exercise  of  that  right  constitutes  war. 

The  right  of  armed  action  inheres  in  the  state  as  a  last  resort  in  protecting 
itself  and  those  belonging  to  it,  whenever  the  offending  government  arbitrarily 
refuses  to  submit  to  the  authority  of  law  and  all  pacific  means  looking  to  a 
settlement  of  the  dispute  have  been  exhausted.  It  then  becomes  a  necessity 
for  the  injured  state,  in  the  absence  of  any  supreme  power  having  authority 
to  direct  armed  force,  to  protect  its  own  right  and  seek  proper  redress  for  the 
violation  thereof,  through  action  directed  against  the  government  which  arbi- 
trarily persists  in  refusing  satisfactory  reparation. 

1421.  The  exercise  of  the  right  of  war  on  the  part  of  a  state  is 
justifiable  only  when  the  ne(;essity  of  resorting  to  this  extreme  and 
always  pernicious  measure  arises  in  order  to  defend  its  own  right 
from  arbitrary  violation  by  armed  force. 

The  protection  of  the  interests  of  dynasties  can  never  justify 
war;  nor  can  war  be  rightfully  invoked  in  the  interests  of  politics 
posing  in  disguise  as  the  interests  of  the  people. 

"  Whoever  reflects  upon  the  terrible  effects  and  lamentable  consequences  of 
war  is  easily  convinced  that  it  absolutely  ought  not  to  be  undertaken  in  the 
absence  of  the  most  serious  grounds."  Vattel,  Le  droit  des  gens,  Pradier- 
Fod^r6's  edition,  Bk.  Ill,  chap.  Ill,  §  24,  t.  XII,  p.  366. 

1422.  It  is  the  duty  of  any  state  which,  in  order  to  protect  its 
right,  feels  disposed  to  declare  war  upon  another  state,  to  consider 
seriously  the  grave  responsibilities  which  the  exercise  of  the  right 
of  war  entails. 

532 


THE    LAST   RECOURSE — WAR  533 

"Kings" — wrote  Fenelon — "ought  to  beware  of  the  wars  which 
they  undertake.  They  ought  to  be  just.  But  this  is  not  enough; 
they  must  be  necessary  for  the  pubhc  welfare.  The  blood  of  a 
people  ought  not  to  be  spilled,  except  to  save  the  people  in  extreme 
necessity."    Telenmque,  liv.  XII. 

INTERNATIONAL   WAR   AND    CIVIL   WAR 

1423.  War,  as  a  legal  form  of  international  action,  consists  in  the 
use  of  military  forces  on  the  part  of  one  or  more  states  against  one 
or  more  states,  in  order  to  settle  a  controversy  involving  interna- 
tional law. 

Internal  armed  conflict  between  the  citizens  of  a  state  who  under- 
take hostilities  for  the  object  either  of  modifying  the  political  con- 
stitution of  the  state  or  of  seceding  and  forming  an  independent 
state,  constitutes  civil  war,  which,  as  a  form  of  action  within  the 
state,  is  governed  by  municipal  public  law. 

1424.  Civil  war  cannot  be  subjected  to  the  same  rules  as  inter- 
national war.  If,  however,  one  or  more  foreign  governments 
should  expressly  recognize  the  rebels  as  belligerents,  this  would 
have  the  effect  of  transforming  the  character  of  the  war  and  the 
relations  between  the  combatants  and  the  recognizing  govern- 
ments, so  that  the  rules  of  international  war  would  apply. 

War,  as  a  form  of  international  action,  brings  about  international  legal  con- 
sequences and  must  be  governed  by  international  law.  In  fact,  it  modifies  the 
law  which  governs  the  international  societj'  in  time  of  peace,  not  only  as  re- 
gards the  belligerents,  but  also  as  regards  third  powers  not  involved  in  the  war. 
Such  exceptional  modification  of  the  laws  of  the  international  society  cannot 
be  effected  by  an  armed  struggle  having  for  its  object  the  solution  of  an  internal 
difference  concerning  public  law,  but  can  only  be  warranted  by  war  in  its 
true  and  broader  sense  as  a  legal  form  of  international  action. 

It  is,  therefore,  necessary  to  determine  precisely  whether  an  international 
war  or  a  civil  war  exists,  in  order  accurately  to  establish  the  rules  to  be  applied. 
Even  though  it  be  conceded  that  a  p(>ople,  not  constituting  a  State,  may  be 
induced  to  establish  one  and  that,  having  exhausted  all  other  means,  it  maj' 
have  recourse  to  armed  force  in  order  to  assert  and  defend  this  right  against 
a  government  which  refuses  to  acknowledge  and  oppo.ses  its  purpose, — such 
a  form  of  action  is  not  primarily  international  war,  but  civil  war,  which  must 
be  governed  by  municipal  public  law  and  not  by  international  law.  It  is 
true  that  such  internecine  strife,  by  reason  of  its  form  and  development,  may 
under  certain  circumstances  concern  and  affect  international  society  and  maj^ 
eventually  require  the  application  of  international  law;  but  that  will  then  be 
due  to  other  reasons.    (Cf .  rules  556,  558  and  700.} 


534  INTERNATIONAL   LAW    CODIFIED 

1426.  The  legal  character  of  civil  war  maj^  be  considered  as 
legally  transformed  when  the  insurgents  succeed  in  occupying  a 
considerable  portion  of  the  territory  of  the  state  they  oppose,  and 
in  establishing  therein  a  government  operating  as  a  regular  govern- 
ment and  capable  of  assuming  responsibilities  as  such. 

Should  the  new  government  thus  established  be  then  recognized 
by  the  majority  of  the  states  of  the  international  society,  and 
should  war  continue,  it  could  no  longer  be  considered  a  civil  war, 
but  an  international  war  subject  to  the  rules  of  international  war. 

In  principle,  the  legal  character  of  international  war  must  be  attributed  to 
armed  struggles  between  states,  but  not  to  internecine  struggles.  Neverthe- 
less, it  must  be  recognized,  by  way  of  illustration,  that  although  at  the  start 
a  war  of  secession  must  be  deemed  a  civil  war,  yet  when  the  seceders  have 
been  able  to  constitute  themselves  as  an  independent  state,  the  former  state 
is  bound  to  be  considered  as  provisionally  divided  in  two,  and  the  new  state, 
as  a  political  entity,  should  be  admitted  to  enjoy  the  rights  inherent  in  those 
who  are  in  fact  in  possession  of  sovereign  rights,  who  de  facto  regit.  (Cf .  rules 
57,  60,  61,  128,  130,  132,  168.) 

We  believe  that  the  same  rules  should  apply  in  case  of  colonial  war,  when 
colonies  succeed  in  constituting  themselves  as  independent  states.  Even 
though  the  mother  country  may  not  have  recognized  the  new  state  and  should 
continue  to  wage  war  against  it  in  order  to  restore  the  colonial  bond,  it  would 
be  illogical  to  regard  such  struggle  as  a  civil  war.  Its  legal  character  is  that  of 
international  war.    (Cf.  rules  168,  174,  176.) 

1426.  The  legal  character  of,  international  war  cannot  be  as- 
signed to  an  armed  struggle  between  a  vassal  state  and  its  suzerain 
state.  Such  character  may,  however,  be  assigned  to  a  war  between 
a  protected  state  and  the  state  which  exercises  the  protectorate. 

The  vassal  state  has  no  international  personality  distinct  from  that  of  the 
suzerain  state,  and  manifestly  there  cannot  exist  between  them  an  interna- 
tional war.     (Cf.  rules  113  and  114). 

While  the  relation  of  protectorate  modifies  the  legal  status  of  the  protected 
state,  it  does  not,  however,  entail  the  loss  of  the  international  personality  of 
that  state.    (Cf.  rules  116  et  seq.) 

See,  on  the  legal  character  of  war,  Oppenheim,  International  law:  Phillimore, 
Commentaries  upon  international  law,  III,  §  49;  Pradier-Fod^re,  Traite,  de  droit 
international  -public,  v.  VI,  §§  2658  et  seq.;  Fillet,  Les  lois  actuelles  de  la  guerre, 
chap.  I,  no.  7. 


THE    DECLARATION   OF   WAR 

1427.  Any  state  wishing  formally  to  wage  war  against  another 
state  should  give  notice  of  its  intention  to  resort  to  armed  force 
for  the  settlement  of  the  controversy,  by  publishing  a  diplomatic 


THE    LAST   RECOURSE— WAK  535 

note  wherein  the  reasons  of  the  casus  belli  are  summarily  stated. 
It  cannot  then  begin  hostilities  without  a  prehminary  declaration 
of  war. 

1428.  Hostile  acts  and  the  exercise  of  the  rights  of  war,  as  re- 
gards both  the  belligerents  and  neutrals,  are  justifiable  only  from 
the  time  when  war  shall  actually  have  begun,  either  through  formal 
declaration,  or  through  an  uUimatimi  notified  with  indication  of  a 
peremptory  time  limit  for  the  commencement  of  hostilities. 

An  ultimatum,  without  formal  intimation  of  war  in  case  of  its 
non-acceptance,  cannot  be  equivalent  to  a  declaration  of  war. 

One  of  the  reasons  assigned  for  advocating  the  ehraination  of  the  formal 
declaration  of  war,  was  that  of  preventing  the  enemy  from  having  time  in 
which  to  complete  his  preparations  for  defense  and  thus  rendering  the  other 
state  the  better  prepared  to  make  the  offensive  attack.  This  danger  may  be 
avoided,  but  the  exercise  of  the  right  of  war  before  the  regular  opening  of 
hostilities  is  not  justifiable  on  any  ground. 

It  is  not  at  all  necessary  that  the  ultimatum  grant  a  long  time  limit.  Strictly 
speaking,  a  few  hours  might  suffice  to  answer  it,  if  the  other  state  should  decide 
to  accept  the  demands  categorically  formulated  under  threat  of  war. 

At  the  time  of  the  war  of  1866,  Bismark  granted  to  Hesse,  Hanover  and  Sax- 
ony a  time  limit  of  twenty-four  hours  by  the  ultimatum,  of  the  15th  of  June, 
and,  no  answer  having  been  made,  the  Prussian  army,  on  the  16th  of  June, 
entered  the  territory  of  Hanover  and,  on  the  17th,  occupied  its  capital. 

At  the  time  of  the  Transvaal  war,  the  ultimatum  notified  October  10,  1899, 
under  threat  of  war,  granted  less  than  24  hours  time  to  Great  Britain. 

1429.  Formal  declaration  of  war  cannot  be  deemed  incumbent 
upon  a  state  which  finds  itself  obliged  to  repel  by  force  the  armed 
aggression  of  another  state,  nor  upon  a  state  against  which  war 
has  been  declared  and  which  finds  itself  compelled  immediately  to 
defend  itself.  In  such  cases,  however,  it  seems  desirable  that  the 
pending  difficulty  be  notified  to  neutral  powers  through  a  public 
manifesto. 

.  1430.  After  the  declaration  of  war,  or  after  the  expiration  of 
the  peremptory  time  limit  fixed  in  the  ultimatum,  the  law  of  peace 
must  be  considered  as  having  become  inapplicable,  and  the  law  of 
war  as  having  come  into  force  both  as  regards  belligerents  and 
third  powers. 

1431.  Should  any  state  commence  hostilities  without  previous 
declaration  of  war,  it  shall  be  deemed  dishonorable  and  contrary 
to  modern  international  law. 

The  rules  proposed  are  in  accord  with  our  previous  opinions.  Fiore, 
Diritto  internazionale  pubblico,  1st  ed.,  1865,  p.  387;  id.,  2d  ed.,  §§  1551  and 


536  INTERNATIONAL    LAW    CODIFIED 

1879;  former  editions  of  the  present  work,  arts.  936  et  seq.,  1st.  ed.,  1890;  art. 
1146,  3d  ed.,  1900.  They  have  been  solemnly  sanctioned  in  the  third  Conven- 
tion of  the  General  Act  of  The  Hague  of  1907,  which  provides  as  follows: 

Article  I. — The  Contracting  Powers  recognize  that  hostilities  between  themselves 
must  not  comm£nce  without  previous  and  explicit  warning,  in  the  form  either  of  a 
reasoned  declaration  of  war  or  of  an  ultimatum  with  conditional  declaration  of  war. 

Article  II. — The  existence  of  a  state  of  war  must  he  notified  to  the  neutral  Powers 
without  delay,  and  shall  not  take  effect  in  regard  to  them  until  after  the  receipt  of  a 
notification,  which  may,  however,  he  given  hy  telegraph.  Neutral  Powers,  never- 
theless, cannot  rely  on  the  absence  of  notification  if  it  is  clearly  established  that 
they  were  in  fact  aware  of  the  existence  of  a  state  of  war. 

Article  III. — Article  I  of  the  present  Convention  shall  take  effect  in  case  of  ivar 
between  two  or  more  of  the  Contracting  Powers.  Article  II  is  binding  as  between 
a  belligerent  Power  which  is  a  party  to  the  Convention  and  neutral  Powers  which 
are  also  parties  to  the  Convention. 

WHEN    DOES   WAR   EXIST   IN   FACT? 

1432.  Even  when  a  state  engages  in  armed  hostilities  against 
another  state  without  having  previously  exhausted  all  the  meas- 
ures agreed  upon  for  the  pacific  settlement  of  the  dispute,  and 
without  having  formally  declared  war,  the  struggle  will,  neverthe- 
less, possess  the  true  character  of  war  whenever  made  with  or- 
ganized armies  and  fleets,  and  with  the  object  of  settUng  b}'-  force 
of  arms  a  contest  involving  international  law. 

Leaving  aside  the  question  of  the  legitimacy  of  war,  there  is  no  doubt  that 
an  open  struggle  conducted  by  organized  military  forces  for  the  purpose  of 
settling  a  question  of  pubhc  law,  cannot  lose  its  legal  character  on  account  of 
the  non-observance  of  the  measures  which  in  ordinary  cases  should  precede 
the  opening  of  hostiUties.  It  might  well  happen  that  a  war  breaks  out  between 
one  state  and  another  which  is  not  a  member  of  the  international  society,  or 
that  a  state  belonging  to  the  international  society  places  itself  outside  the 
"common"  law  by  forthwith  employing  armed  force  for  settling  a  dispute  with 
another  state.  It  might  also  happen  that  a  state,  without  having  recourse  to 
pacific  means  to  secure  the  recognition  of  its  rights,  asserts  and  supports  them 
by  armed  force.  In  such  a  case,  it  cannot  be  maintained  that  an  armed  strug- 
gle between  two  or  more  states  should  not  be  characterized  as  war.  When  the 
cause  of  the  hostilities  is  a  violation  of  law  and  is  clearly  characterized  as  an 
arbitrary  act,  while  having  a  decisive  influence  upon  the  legitimacy  or  illegiti- 
macy of  the  war,  it  cannot  affect  the  armed  struggle  as  a  state  of  actual  war, 
even  as  to  a  state  which  employs  armed  force  to  disregard  the  right  of  others 
or  to  violate  the  laws  of  the  international  society. 

1433.  The  state  of  war  must  be  considered  as  existing  de  facto 
from  the  time  when  either  of  the  contending  states  has  committed 
the  first  hostile  act. 

While  it  is  desirable  according  to  the  just  principles  of  modern  law  that  the 
state  of  war,  with  all  its  legal  consequences,  should  be  considered  as  existing 


THE   LAST   RECOURSE — WAR  537 

only  from  the  time  the  state  has  made  known  in  a  precise  and  unequivocal 
manner  that  it  resorts  to  armed  force  for  the  protection  of  its  rights,  yet  if  one 
of  the  contending  states  commits  the  first  act  of  hostility,  that  fact  will  be 
deemed  sufficient  to  establish  the  beginning  of  a  state  of  war.  Any  discussion 
as  to  the  regularity  of  the  procedure,  the  legitimacy  of  the  acts  of  violence 
and  hostility  previous  to  the  declaration  of  war  must  be  considered  as  fruitless. 
Once  the  act  of  hostility  is  accompHshed,  war  must  be  deemed  as  having,  ipso 
facto,  begun. 

GENERAL    EFFECTS    OF   WAR 

1434.  The  general  and  immediate  effect  of  war  is  to  render 
applicable,  from  the  time  it  begins  until  peace  is  concluded,  the 
laws,  usages,  and  international  conventions  that  relate  thereto, 
both  as  between  the  belligerents  and  with  respect  to  neutral  states. 

1435.  An  immediate  effect  of  war  is  to  make  lawful  between  the 
beUigerents,  ipso  jure  ipsoque  fo.cto,  acts  of  violence  against  persons 
who  take  an  active  part  therein  and  against  the  enemy's  property, 
and  to  legitimate  operations  of  attack  and  defense  conformable 
to  the  usages  of  war  and  those  which  unforeseen  necessities  may 
require. 

DIPLOMATIC    RELATIONS 

1436.  Once  war  has  broken  out,  diplomatic  relations  between 
the  belligerent  states  are  severed. 

The  diplomatic  representatives  will  be  recalled  by  their  respec- 
tive governments  or  they  may  be  dismissed  by  handing  them  their 
passports  and  granting  them  sufficient  time  to  leave  the  country 
with  the  privileges  and  guaranties  which  are  due  them  according 
to  international  law. 

If  they  should  not  leave  within  the  time  granted,  the  Govern- 
ment may  compel  their  departure  by  having  them  conducted  to  the 
frontier. 

1437.  The  belligerent  government  ought  not  to  withdraw  the 
exequatur  from  all  the  consuls  of  the  enemy  state,  but  should 
maintain  it  in  force  with  respect  to  those  who  do  not  take  undue 
advantage  of  their  situation  and  who  continue  to  exercise  their 
legitimate  functions.  It  may,  however,  withdraw  the  exequatur 
from  consuls  whose  attitude  is  open  to  suspicion,  and  especially 
from  those  who,  as  citizens  of  the  hostile  state,  may  naturally 
take  undue  advantage  of  tli(>ir  position. 


538  INTERNATIONAL   LAW    CODIFIED 

Since  war  does  not  interrupt  all  commercial  intercourse  and  relations  be- 
tween private  citizens  of  the  belligerent  states,  the  presence  and  functions  of 
consuls  are  not,  in  principle,  necessarily  inconsistent  with  a  state  of  war.  The 
dismissal  of  all  the  consuls  who  exercise  their  functions  in  a  hostile  countrj' 
would  not,  therefore,  as  a  general  rule  be  justified.  It  is  preferable  that  gov- 
ernments should  act  with  caution  and  should  not  withdraw  the  exequatur  ex- 
cept as  to  such  consuls  as  may  be  suspected  of  taking  undue  advantage  of  their 
position  in  order  to  promote  the  interests  of  the  belligerent  state  to  which  they 
belong. 

At  any  rate,  the  government  of  a  belligerent  state  should  never  be  denied 
the  privilege  of  entrusting  to  the  representations  of  a  neutral  and  friendly 
Power  the  protection  of  its  nationals  in  an  enemy  state. 


TREATIES 

1438.  The  extinction  of  all  treaties  and  conventions  concluded 
between  the  belligerent  states  cannot  be  deemed  an  immediate 
effect  of  war,  but  only  the  termination  of  those  which,  by  their 
nature  and  object,  are  necessarily  inconsistent  with  a  state  of  war. 

Even  though  the  execution  or  performance  of  a  treaty  must  be 
regarded  as  suspended  during  the  state  of  war  by  reason  of  its 
incompatibility  with  that  condition  of  affairs  or  because  of  the 
obstacles  created  by  hostilities,  that  circumstance  cannot  annul 
the  legal  force  of  the  conventional  obligations  assumed  by  the 
belligerent  states.  These  obligations  again  become  valid  and 
operative  at  the  end  of  the  war,  unless  the  terms  of  peace  modify 
the  conventional  relations  previously  established. 

Several  writers  (Cf.  Phillimore,  v.  3,  §530;  Twiss,  v.  1,  §252;  Calvo, 
4th  ed.,  §  362)  have  held  that  treaties  concluded  between  states  were  automat- 
ically terminated  whenever  war  broke  out  between  them;  but  this  theory 
does  not  seem  to  us  justifiable.    (Cf.  rules  845  and  859.) 

War  does  not  place  the  combatants  in  the  status  of  the  so-called  "state  of 
nature"  and  does  not  destroy  the  authority  of  international  and  of  conven- 
tional law  so  far  as  they  are  concerned.  To  be  sure,  war  constitutes  in  itself  a 
case  of  force  majeure  with  respect  to  the  exercise  of  any  right  which  may  be 
exercised  and  enjoyed  only  during  peace.  Yet,  since  war,  considered  as  ul- 
tima ratio,  must  tend  to  restore  the  authority  and  respect  of  violated  right, 
it  is  decidedly  illogical  to  admit  that  it  may  destroy,  with  respect  to  belliger- 
ents, pre-existing  rights,  whether  those  rights  arise  out  of  custom  or  treaties. 
It  is  very  likely  that  the  state  of  war,  while  it  lasts,  may  render  impossible  the 
execution  of  treaties,  and  it  must  be  admitted  that  performance  must  be  sus- 
pended while  the  impossibility  lasts.  But  this  suspension  of  treaties  cannot 
bar  those  acts  whose  execution  is  compatible  with  the  state  of  war;  e.  g., 
treaties  concerning  the  execution  of  judgments  of  the  respective  courts,  ar- 
tistic and  literary  copyright  and  trade-mark  treaties,  those  governing  succes- 
sion and  bankruptcy,  treaties  of  residence  and  travel,  etc. 

We  persist,  therefore,  in  maintaining  that  war  does  not  in  general  destroy 


THE    LAST    RECOURSE — WAR  539 

the  legal  force  of  the  conventional  relations  previously  established  between  the 
belligerent  states,  but  that  legal  rights  and  obligations  based  upon  previous 
treaties  recover  their  value  when  war  has  ceased,  unless  the  treaty  of  peace 
shall  otherwise  provide.  Cf.  Bluntschli,  Le  droit  international  codifie,  3d  ed. 
(transl.  by  Lardy),  rule  538;  Oppenheim,  op.  cit.,  v.  II,  §99;  Bonfils- 
Fauchille,'§  1049;  Pradier-Fod6re,  v.  VI,  §  2704. 

1439.  All  treaties,  either  general  or  special,  concluded  by  states 
with  a  .view  to  conditions  of  war,  become  operative  from  the  time 
war  is  declared. 

This  is  illustrated  b\'  the  Paris  Convention  of  1856  concerning  maritime 
war;  by  the  conventions  concluded  at  The  Hague  in  1907,  relating  to  rights 
and  duties  of  nations  in  time  of  war;  and  by  the  conventional  provisions  relat- 
ing to  contraband  of  war,  embargo,  etc. 


MILITARY   POWER — MARTIAL   LAW 

1440.  One  of  the  effects  of  war  is  to  bestow  extraordinary  powers 
upon  the  commanding  officers  of  the  army  and  navy,  both  as 
regards  combatants  and  non-combatants  who  happen  to  be  in  the 
war  areas. 

The  commanding  officer  has  the  right  to  authorize  whatever 
measures  he  may  deem  necessary  to  assure  the  success  of  the 
military  operations,  and  to  provide  for  urgent  necessities  through 
proclamation,  even  to  the  extent  of  proclaiming  martial  law. 

1141.  The  proclamation  and  application  of  martial  law  cannot 
take  place  except  at  the  time  when  enemy  territory  is  seized  and 
occupied. 

With  respect  to  the  extent  of  the  powers  based  upon  martial  law,  see  here- 
after the  rules  relating  to  military  occupation. 

1442.  Every  military  commander,  in  exercising  the  extraordi- 
nary powers  which  attach  to  his  position  in  time  of  war  must, 
however,  refrain  from  violating  the  principles  of  natural  justice, 
and  must  not  disregard,  in  an  arbitrary  manner  and  without  good 
reasons,  the  fundamental  rights  of  persons  and  the  guaranties 
which  are  vouchsafed  to  them  by  international  law. 

While  the  eventual  necessities  of  war  may,  in  principle,  occasionally  justify 
derogations  from  the  "common"  law,  nevertheless  it  is  inadmissible  that  any 
arbitrary  wish  or  order  of  a  military  commander  should  supersede  the  law. 
When  exaggerat  ion  and  abu.se  are  clear  in  the  circumstances,  the  extraordinary 
powers  of  the  commander  cannot  justify  his  usurpation  of  authority. 


540  INTERNATIONAL    LAW    CODIFIED 

MUNICIPAL   LEGISLATION    IN   TIME   OF   WAR 

1443.  War  at  once  brings  into  operation  that  part  of  municipal 
legislation  which,  in  practically  every  country,  governs  the  state 
of  war,  and  maintains  it  in  force  until  peace  is  concluded. 

War  is  an  exceptional  state  of  affairs  which,  so  far  as  the  exercise  of  rights  is 
concerned,  constitutes  force  majeure.  Therefore,  during  its  continuance,  the 
legislator  must,  by  means  of  exceptional  provisions,  regulate  the  enjoyment 
and  exercise  of  rights,  and  indicate  the  changes  in  public  law  which  the  exi- 
gency of  war  may  require.  Thus,  in  most  if  not  all  countries  there  exist  excep- 
tional provisions  in  the  Civil  Code  concerning  the  forms  of  wills  in  time  of  war; 
in  the  Commercial  Code,  as  regards  the  time  periods  for  the  bringing  of  an 
action  of  guaranty  against  the  joint  debtors  under  a  bill  of  exchange;  in  the 
Merchant  Marine  Code,  concerning  goods  which  constitute  contraband  of  war. 

The  Military  Criminal  Code  is  divided  into  two  parts, — one  in  force  in  time 
of  peace,  the  other  in  force  in  time  of  war.  By  the  legislation  of  some  countries, 
the  principal  change  which  public  law  may  undergo  in  time  of  war  arises  from 
the  possibility  of  proclaiming  martial  law.  For  example,  this  is  expressly 
provided  by  the  French  law  of  April  3,  1898.  That  is  one  of  the  reasons  why 
it  is  necessary  to  establish  precisely  when  peace  ends  and  war  begins;  hence 
the  absolute  necessity  of  a  formal  declaration  of  war. 

EFFECTS    OF   WAR   ON    PERSONS   AND   THEIR   PROPERTY 

1444.  As  a  general  effect  of  war,  the  citizens  of  the  belligerent 
states  or  those  of  neutral  countries  who  take  part  in  the  war  oper- 
ations are  subject,  as  such,  to  the  laws  of  war,  which  limit  the  free 
enjoyment  of  rights,  so  long  as  the  necessities  of  war  and  the  duties 
of  neutrality  may  so  require.  Members  of  the  army  or  the  navy,  or 
those  who  in  any  way  participate  in  the  armed  struggle  must  be 
regarded  as  enemies.  Private  citizens  of  either  of  the  belligerent 
states  who  do  not  take  any  effective  part  in  the  war,  must  be 
protected  in  the  respective  territories  of  those  states  in  their  per- 
sonal security,  the  inviolability  of  their  property,  and  the  exercise 
and  enjoyment  of  their  private  rights. 

Modern  law  is  opposed  to  the  old  idea  or  theory  which  regarded  all  of  the 
nationals  of  the  belligerent  states  as  enemies.  At  present,  only  the  individuals 
who  actively  participate  in  the  struggle  are  considered  enemies.  This  proper 
conception  was  formulated  as  follows  in  the  remarkable  speech  made  by  Por- 
talis  in  Year  VIII,  on  opening  the  Council  of  Prizes: 

"Between  two  or  more  belligerent  nations,  the  individuals  of  which  these 
nations  are  composed  are  enemies  only  by  accident;  they  are  not  enemies 
even  as  citizens,  they  are  enemies  as  soldiers  only." 

[This  principle  was  in  fact  enunciated  by  Rousseau  in  his  Contrat  Social 
and  was  quoted  by  Portalis  and  others  after  him  with  unreflecting  commenda- 
tion.   Anglo-American  courts  of  law  have  adopted  an  entirely  different  view, 


THE    LAST   RECOURSE — WAR  541 

whatever  philosophical  justification  may  be  found  in  Rousseau's  doctrine. 
The  matter  is  accurately  analyzed  by  VVestlake,  Internalional  Law,  II,  p.  37 — 
Transl.l 

1445.  A  belligerent  may  subject  those  who  are  in  the  area  of 
war  and  who  do  not  take  an  active  part  in  the  hostilities  to  the 
orders  of  the  military  authorities  and  punish  them  for  non-compli- 
ance therewith.  He  may  also  impose  limitations  upon  them  in  the 
exercise  and  enjoyment  of  their  rights,  which  may  be  justified  by 
the  exigencies  of  war.  He  may  also  subject  their  property  to  the 
necessities  of  war  upon  taking  possession  of  the  enemy's  territory, 
yet  without  violating  the  laws  and  usages  of  war  or  the  rules  set 
forth  below. 

See  hereinafter  the  rules  concerning  the  rights  of  belligerents  over  the  prop- 
erty of  citizens  of  the  enemy  state  in  time  of  war. 

1446.  A  belligerent  state  has  no  right  to  prevent  the  citizens 
of  the  hostile  state  from  continuing  to  reside  on  its  territory  and 
to  pursue  their  peaceful  vocations,  trade  and  commerce.  Such 
obligation,  however,  would  no  longer  exist  if  their  conduct  gives 
rise  to  well-founded  suspicions  that,  for  the  purpose  of  war,  they 
were  aiding  or  favoring  the  government  of  the  country  of  which 
they  were  citizens. 

1447.  It  must  be  deemed  contrary  to  the  just  principles  of 
modern  law  to  order  the  expulsion  en  masse  of  all  the  citizens  of  a 
hostile  state  who  conduct  themselves  peacefully  and  do  not  com- 
mit any  violation  of  law. 

Even  when  the  expulsion  of  some  of  them  might  be  justified  b}^ 
their  suspicious  conduct,  it  ought  to  be  considered  contrary  to 
natural  justice  to  refuse  them  a  reasonable  time  for  settling  their 
affairs  before  their  enforced  departure. 

During  the  war  of  1877,  between  Russia  and  Turkey,  the  Emperor  of  Russia 
authorized  Turkish  citizens  residing  in  Russia  to  continue  to  live  there  and 
to  exerci.se  their  jieaceful  (tailings  imdcr  the  protection  of  Russian  laws.  Dur- 
ing the  Russo-Japanese  war,  only  the  .Japanese  living  in  the  oriental  provinces 
were  expelled,  tho.se  living  in  the  other  provinces  of  the  Russian  Empire  being 
permitted  to  continue  their  peaceful  residence  therein. 

In  many  treaties  of  commerce  and  residence  there  is  stipulated  a  time  limit 
granted  to  merchants,  in  the  event  of  war  breaking  out  between  the  contract- 
ing states,  for  settling  their  affairs  and  placing  their  merchandise  in  safety 
before  their  departure.  This  clause,  generally  accepted,  should  henceforth 
be  regarded  as  a  rule  of  "common"  law  and  respected  as  such. 

At  any  rate,  it  would  be  unfair  for  a  government  to  order  the  immediate 
departure  of  private  citizens  of  the  enemy  state  without  granting  them  a 


542  INTERNATIONAL   LAW    CODIFIED 

reasonable  time  in  which  to  settle  their  afTairs  (three  months  at  least).  If 
the  correct  conception  of  Portalis  (note  under  rule  1444)  is  borne  in  mind,  that 
private  citizens  of  the  belligerent  states  are  not  at  war  with  one  another,  the 
most  natural  and  equitable  rule  consists  in  respecting  the  peaceful  relations 
existing  between  the  citizens  of  the  contending  governments  notwithstanding 
the  state  of  war.  Such  a  course  appears  all  the  more  reasonable  when  it  is 
considered  that  the  adoption  of  the  opposite  rule  cannot  be  of  any  practical 
value  to  the  belligerent  states. 

1448.  It  should  be  regarded  as  an  act  clearly  contravening 
the  principles  of  modern  law  to  confiscate  the  property  of  private 
citizens  of  an  enemy  state  who  were  residing  in  the  state  before 
the  declaration  of  war,  and  especially  to  seize  by  embargo  and  to 
confiscate  the  merchant  ships  belonging  to  citizens  of  the  other 
belligerent,  before  the  declaration  of  war.  Such  a  course  would 
manifestly  constitute  a  most  serious  violation  of  private  property 
and  would  be  an  unwarranted  impeachment  of  the  good  faith  of 
peaceful  merchants. 

Confiscating  enemy  merchant  ships  subjected  to  embargo  before  the  declara- 
tion of  war  cannot  be  justified  under  any  circumstance,  not  even  as  an  act 
of  reprisal.  How,  in  effect,  could  the  legal  character  of  an  act  accomplished 
in  time  of  peace  be  perverted  in  order  to  subject  it  to  the  laws  of  war? 

Honesty,  good  faith  and  respect  for  the  principles  of  natural  justice  require 
that  merchants  who  have  entered  foreign  ports  for  the  purpose  of  transacting 
business  under  the  protection  of  the  law  of  peace,  should,  in  the  event  that 
war  breaks  out,  have  a  reasonable  time  limit  in  which  to  complete  their  busi- 
ness and  seek  safety  before  being  subjected  to  the  laws  of  war. 

1449.  Temporary  sequestration  of  enemy  merchant  ships  in 
the  ports  of  the  other  state  at  or  near  the  time  of  the  declaration 
of  war,  may  be  justifiable  as  a  reasonable  police  measure  when  its 
object  is  to  prevent  divulgence  by  such  detained  vessels  of  the  facts 
and  circumstances  relating  to  the  preparations  for  or  operations 
of  war  which  it  is  necessary  to  keep  secret.  However,  this  measure, 
required  for  the  safety  of  the  state  must,  so  far  as  its  duration  is 
concerned,  be  limited  to  the  object  it  has  in  view. 

1450.  The  states  which  signed  the  Convention  of  October  18, 
1907,  must  be  deemed  bound  to  observe  the  provisions  of  that 
Convention  with  respect  to  merchant  ships  in  their  ports  when 
hostilities  begin. 

The  other  states  which  did  not  sign  it  must,  nevertheless,  con- 
sider the  rules  it  contains  as  the  expression  of  the  best  principles 
of  modern  international  law. 

The  Convention  relating  to  the  treatment  of  the  merchant  ships  of  a  hostile 
state  is  the  sixth  of  the  Final  Act  of  The  Hague  Conference;  it  bears  the  date 


THE   LAST   RECOURSE — WAR  543 

of  October  18,  1907,  but  was  in  reality  signed  June  30,  1908.    Germany  and 
Russia  made  certain  reservations. 

The  convention  contains  tlie  following  provisions: 

Art  1. — Wheii  a  merchanl  ship  belonging  to  one  of  the  belligerent  powers  is, 

at  the  commencement  of  hosliliiies,  in  an  enemy  port,  it  is  desirable  that  it  should 

be  allowed  to  depart  freely,  either  immediately,  or  after  a  reasonable  number  of 

days  of  grace,  and  to  proceed,  after  being  furnished  with  a  pass,  direct  to  its  port 

.  of  destination  or  any  other  port  indicated. 

The  same  rule  should  apply  in  the  case  of  a  ship  which  has  left  its  last  port  of 
departure  before  the  commencement  of  the  ivar  and  entered  a  port  belonging  to  the 
enemy  while  still  ignorant  that  hostilities  had  broken  out. 

Art  2. — A  merchant  ship  unable,  owing  to  circumstances  of  force  majeure,  to 
leave  the  enemy  port  within  the  period  contemplated  in  the  above  article  or  which 
ivas  not  allowed  to  leave,  cannot  be  confiscated. 

The  belligerent  may  only  detain  it,  without  payment  of  compensatio7i,  but  sub- 
ject to  the  obligation  of  restoring  it  after  the  war,  or  requisition  it  on  payment  of 
compensation. 

Art.  3. — Enemy  merchant  ships  which  left  their  last  port  of  departure  before 
the  commencement  of  the  war,  and  are  encountered  on  the  high  seas  ivhile  still 
ignorant  of  the  outbreak  of  hostilities  cannot  be  confiscated.  They  are  only  liable 
to  detention  on  the  understanding  that  they  shall  be  restored  after  the  war  without 
compensation,  or  to  be  requisitioned,  or  even  destroyed,  on  payment  of  compensa- 
tion, but  in  such  case  provision  must  be  made  for  the  safety  of  the  persons  on  board 
as  well  as  the  security  of  the  ship's  papers. 

After  touching  at  a  port  in  their  own  country  or  at  a  neutral  port,  these  ships 
are  subject  to  the  laws  and  customs  of  maritime  war. 

Art.  4- — Enemy  cargo  on  board  the  vessels  referred  to  in  Articles  1  and  2  is 
likewise  liable  to  be  detained  and  restored  after  the  termination  of  the  war  without 
payment  of  compensation,  or  to  be  requisitioned  on  payment  of  compensation, 
with  or  vnlhout  the  ship. 

The  same  rule  applies  in  the  case  of  cargo  on  board  the  vessels  referred  to  in 
Article  3. 

Art.  6. — The  present  Convention  does  not  affect  merchant  ships  whose  build 
shows  that  they  are  intended  for  conversion  into  war  ships. 

Art.  6. — The  provisions  of  the  present  convention  do  not  apply  except  between 
contracting  Powers,  and  then  only  if  all  the  belligerents  are  parties  to  the  Con- 
vention. 

/ 

GENERAL  RULES  CONCERNING  THE  EXERCISE  OF  THE  RIGHTS  OF  WAR 

1451.  It  is  the  duty  of  every  civilized  state,  aside  from  the 
obligations  expressly  undertaken  in  an  international  convention 
concluded  on  the  subject,  to  exercise  the  rights  of  war  according 
to  the  rational  principles  of  international  law,  the  laws  of  human- 
ity and  the  requirements  of  civilization. 

For  this  purpose,  every  government  must  draft  suitable  regula- 
tions and  instructions  calculated  to  prevent  any  arbitrary  act  on 
the  part  of  the  military  authorities;  to  prevent,  so  far  as  possible, 
the  excesses  and  violen(;e  not  justified  I)y  the  exigency  of  war;  to 


544  INTERNATIONAL   LAW    CODIFIED 

regulate  the  behavior  of  the  army  and  navy  in  their  relations  with 
the  belligerents  of  the  hostile  state  and  with  the  peaceful  popu- 
lation, in  order  to  restrict  ^-ithin  just  limits  the  disastrous  conse- 
quences and  unavoidable  evils  incident  to  war,  and  likewise  to 
protect  the  rights  of  man,  the  laws  of  humanitj'  and  the  require- 
ments of  civilization. 

1452.  Every  government  which  has  failed  so  to  provide,  by 
promulgating  and  making  compulsory  army  and  navy  regula- 
tions and  instructions  to  that  end,  or  which,  having  provided 
therefor,  has  shown  culpable  neglect  by  failing  to  take  the  measures 
necessary  for  assuring  the  execution  of  the  said  regulations  and 
instructions,  or  which  fails  to  punish  those  who  have  violated  the 
laws  and  usages  of  war  declared  compulsory,  shall  be  deemed 
legalh'  liable  in  damages.  Such  fact  shall  give  rise  to  the  inter- 
national responsibility  of  the  state  for  an}^  damage  arising  from 
offenses  or  atrocities  committed  b}'  its  army  or  navy  in  violation 
of  the  laws  and  usages  of  war  declared  compulsory. 

Several  governments  have,  in  fact,  and  aside  from  any  engagement  imposed 
by  an  international  convention,  drawn  up  regulations  and  instructions  for 
their  troops  in  time  of  war  and  have  made  them  compulsory  by  law  or  decree. 
This  is  what  the  United  States  government  has  done. 

The  instructions  for  the  government  of  the  armies  of  the  United  States  in 
the  field  were  drawn  up  by  Professor  Lieber,  author  of  the  draft,  which  was 
later  revised  by  a  committee  of  officers.  They  were  ratified  by  President 
Lincoln  in  1863,  and  are  the  most  complete  in  existence. 

In  like  manner,  Italy,  in  a  spirit  as  usual  fair  and  liberal,  promulgated  by 
a  decree  of  November  2,  1882,  the  regulations  for  the  service  of  the  army  in 
time  of  war,  amended  later  by  the  decree  of  September  16,  1S96. 

In  France  the  provisional  regulations  for  the  troops  in  the  field  were  ap- 
proved by  decree  of  October  11,  1809,  dated  from  Schoenbrunn;  they  were 
followed  by  other  provisional  instructions  in  1823;  and  finally  the  army  service 
was  regulated  by  the  presidential  decree  of  October  28,  1883. 

Germany  proclaimed  its  last  regulations  for  the  service  in  time  of  war  imder 
date  of  January  1,  1900. 

The  first  attempt  toward  rendering  compulsory  any  international  regula- 
tions concerning  the  laws  and  customs  of  war  on  the  European  continent  was 
initiated  by  the  Russian  government,  which  prepared  a  draft  agreement  to 
determine  the  rights  and  duties  of  belligerent  states  and  summoned  the  meet- 
ing of  a  Conference.  This  Conference  met  at  Brussels  on  .July  27,  1874,  dis- 
cussed the  draft,  amended  it  materially  on  various  points,  and  drew  up  a  new 
draft  which  was  submitted  to  the  approval  of  governments.  It  was  not  finally 
approved.  The  first  Peace  Conference  of  1899,  guided  by  the  di'aft  conven- 
tion of  the  Brussels  Conference  of  1874,  regulated  certain  matters  relating  to 
the  exercise  of  the  right  of  war.  The  Second  Peace  Conference  of  1907  de- 
voted its  attention  to  the  same  question ;  the  fourth  convention  of  the  General 
Act  relates  specifically  to  the  regulation  of  war  and  makes  the  provisions 


THE  LAST  RECOURSE — WAR  545 

relating  to  the  laws  and  customs  of  war,  as  adopted,  compulsory  upon  the 

signatory  states. 

1453.  All  the  states  of  the  international  society  which  have 
signed  the  conventions  relating  to  the  laws  and  customs  of  war 
concluded  at  The  Hague  on  July  29,  1899,  and  October  18,  1907, 
must  under  these  Conventions  be  deemed  bound  to  observe  the 
provisions  agreed  upon  as  compulsory  in  land  warfare,  provided 
they  have  been  ratified. 

1454.  It  is  the  duty  of  every  one  of  the  states  which  has  signed 
and  ratified  the  Convention  of  October  18,  1907,  and  of  all  the 
states  which  have  adhered  thereto,  to  give  to  their  land  forces 
instructions  in  accordance  with  the  regulations  concerning  the 
laws  and  customs  of  continental  war  annexed  to  the  said  Conven- 
tion and  which  are  to  be  regarded  as  compulsory  and  applicable 
between  the  contracting  parties  should  war  break  out  between  them. 

Cf.  articles  1  and  2  of  the  Convention  under  rule  1456. 

1455.  The  laws  and  customs  of  war  declared  obligatory  in  con- 
tinental war  upon  the  states  which  have  signed  and  ratified  the 
General  Act  of  The  Hague  Conference  of  October  18,  1907,  must 
be  considered  under  the  guaranty  and  collective  protection  of  the 
signatory  states,  like  any  other  international  engagement  con- 
tracted in  a  general  treaty. 

Compare  the  declaration  made  at  the  London  Conference,  on  January  17, 
1871,  Protocol  No.  1,  which  reads  as  follows: 

"The  Plenipotentiaries  convened  in  Conference  recognize  that  it  is  an 
essential  principle  of  international  law  that  no  power  can  free  itself  from  the 
engagements  of  a  treaty,  or  modify  its  stipulations  except  with  the  consent 
of  the  contracting  parties  through  a  friendly  understanding." 

(This  was  mere  lip  service  to  the  principle  of  the  sanctity  of  treaties.  As 
a  matter  of  fact,  Russia  had  just  then  taken  advantage  of  the  Franco-German 
war  of  1870  to  denounce  certain  sti[)ulations  of  the  treaty  of  Paris  of  1856. 
Sec  Westlake,  2d  ed.,  v.  I,  p.  297.— Transl] 

1456.  Any  state  of  the  international  society  which  may  be  at 

war  with  another  member  state  or  with  one  which  has  adhered  to 

and  ratified  the  aforesaid  C'onvention,  shall  be  held  responsible 

for  any  violation  of  the  provisions  of  the  regulations,  subscribed 

and  ratified,  committed  on  its  own  part  or  by  persons  constituting 

part  of  its  armed  forces;  moreover,  in  proper  cases,  it  shall  be 

bound  to  make  compensation  for  the  damage  so  inflicted. 

Tlie  rules  that  w(!  prof)c)sc  arc  based  on  the  Convention  which  is  part  of  the 
(jencral  .Vet  of  The  Ilagu(;  of  1".)()7,  which  amended  that  of  July  29,  1899, 


546 


INTERNATIONAL  LAW   CODIFIED 


concerning  the  laws  and  customs  of  war.  It  is  the  fourth  convention  of  the 
General  Act  and  stipulates  as  follows: 

Article  1. — The  Contracting  Powers  shall  issue  instructions  to  their  armed 
land  forces  which  shall  be  in  conformity  with  the  Regulations  respecting  the  laws 
and  customs  of  war  on  land,  annexed  to  the  present  Convention. 

Article  2. — The  provisions  contained  in  the  Regulations  referred  to  in  Ar- 
ticle 1 ,  as  well  as  in  the  present  Convention,  do  not  apply  except  between  Contract- 
ing Powers,  and  then  only  if  all  the  belligerents  are  parties  to  the  Convention. 

Article  3. — A  belligerent  party  which  violates  the  provisions  of  the  said  Regula- 
tions shall,  if  the  case  warrants,  be  liable  to  pay  compensation.  It  shall  be  respon- 
sible for  all  acts  committed  by  persons  forming  part  of  its  armed  forces. 

Article  4. — The  present  Convention,  duly  ratified,  shall  as  between  Contract- 
ing Powers,  be  substituted  for  the  Convention  of  the  29th  July,  1899,  respecting 
the  laws  and  customs  of  war  on  land. 

The  Convention  of  1899  remains  in  force  as  between  the  Powers  which  signed 
it,  and  which  do  not  also  ratify  the  present  Convention. 

1457.  For  the  general  purpose  of  restricting  the  evils  and  suffer- 
ings of  war,  it  is  incumbent  upon  the  states  constituting  the  in- 
ternational society  to  complete  the  codification  of  the  laws  and 
usages  of  land  and  maritime  war  and  to  sign  and  ratify  the  same. 
In  this  way,  the  conduct  of  belligerents  in  their  relations  with  one 
another  and  with  non-combatants  would  be  governed  by  the 
principles  of  justice  and  humanity,  and,  as  far  as  practicable,  all 
arbitrary,  unlawful  or  inhuman  acts  of  the  military  authorities 
and  combatants  would  be  eliminated. 

The  regulations  of  the  laws  and  usages  of  land  war  as  stipulated  by  the 
Convention  of  1907  are,  on  several  points,  quite  satisfactory.  They  were  the 
outcome  of  numerous  studies  on  the  subject  made  by  those  who  drew  up 
the  instructions  given  to  the  armies  of  the  civilized  states,  among  which  in- 
structions special  mention  must  be  made  of  those  given  by  the  United  States 
in  1863,  by  publicists,  by  the  Brussels  Conference  of  1874,  and  by  the  Institute 
of  International  Law,  which  drafted  a  Regulation  which  was  discussed  and 
approved  at  the  Oxford  session  of  September  9,  1880. 

The  Conference  of  1899  had  already  regulated  certain  points;  but  that  of 
1907,  while  revising  the  regulations  of  1899,  has  introduced  some  noteworthy 
improvements  in  the  codification  of  the  laws  and  usages  of  land  war.  A  fact 
of  very  great  importance  is  that  the  convention  was  signed  without  reservation 
by  the  following  thirty-eight  (38)  states: 


Argentina 

Denmark 

Luxemburg 

Roumania 

Belgium 

Dominican  Republic 

Mexico 

Salvador 

Bolivia 

Ecuador 

Netherlands 

Servia 

Brazil 

France 

Nicaragua 

Siam 

Bulgaria 

Great  Britain 

Norway 

Spain 

Chile 

Greece 

Panama 

Sweden 

China 

Guatemala 

Paraguay, 

Switzerland 

Colombia 

Haiti 

Persia 

United  States 

Cuba 

Italy 

Peru 

Uruguay 

Portugal 

Venezuela 

THE  LAST  RECOURSE— WAR  547 

It  was  signed  with  certain  reservations  by  Austria-Hungary,  Germany, 
Japan,  Montenegro,  Russia  and  Turkey. 

We  shall  set  out  the  articles  of  these  regulations,  studying  each  of  the  points 
to  which  they  refer.  It  is  to  be  hoped  that  this  work  will  go  on  and  that  mari- 
time war  will  be  hkewise  regulated. 

1458.  So  long  as  a  complete  code  respecting  the  laws  and  usages 
of  land  and  maritime  war  shall  not  have  been  issued,  the  states 
represented  at  the  Conference  of  1907  are  bound  to  exercise  the 
rights  of  war  in  cases  not  contemplated  and  regulated  by  the  rules, 
in  conformity  with  the  principles  of  the  law  of  nations,  which  are 
founded  upon  the  usages  established  among  civihzed  peoples,  the 
laws  of  humanity  and  the  dictates  of  public  conscience. 

This  rule  is  based  on  the  declaration  made  and  signed  without  reservation 
by  the  forty-four  states  represented  at  the  Conference  of  1907,  and  which 
constitutes  the  preamble  of  the  Convention  respecting  the  laws  and  usages 
of  land  war,  the  fourth  Convention  of  the  General  Act  of  October  18,  1907. 

It  reads: 

"The  High  Contracting  Parties  clearly  do  not  intend  that  unforeseen  cases 
should,  in  the  absence  of  a  uritten  undertaking,  be  left  to  the  arbitrary  judgment 
of  military  commanders. 

"  Until  a  more  complete  code  of  the  laws  of  war  has  been  issued,  the  High  Con- 
tracting Parties  deem  it  expedient  to  declare  that,  in  cases  not  included  in  the 
Regulations  adopted  by  them,  the  inhabitants  atid  the  belligerents  remain  under 
the  protection  and  the  rule  of  the  principles  of  the  law  of  nations,  as  they  result 
from  the  usages  established  ainong  civilized  peoples,  from  the  laws  of  humanity 
and  the  dictates  of  public  conscience." 


TITLE  VII 
EXERCISE  OF  THE  RIGHTS  OF  WAR 

BELLIGERENTS    MAY    EXERCISE   THE   RIGHTS   OF   WAR 

1459.  The  exercise  of  the  rights  of  war  can  lawfully  appertaih 
only  to  the  persons  who  may  be  rightfully  regarded  as  belligerents 
under  the  laws  of  war. 

Anj^  act  of  hostility,  any  armed  violence  against  the  person  or 
property  of  the  hostile  sovereign  or  state  and  of  its  citizens,  even 
though  legitimate  under  the  laws  of  war,  shall  be  deemed  unlawful 
and  punishable  according  to  "common"  law,  if  committed  by 
one  who  is  not  properly  a  belligerent. 

Compare  rules  1474  and  1477. 

Considering  the  fundamental  principle  that  war,  according  to  modern  law, 
is  not  an  armed  struggle  between  all  the  citizens  of  the  belligerent  states,  but 
a  struggle  between  the  military  forces  of  these  states,  it  logically  follows  that 
only  the  individuals  who  belong  to  such  forces  are  at  all  justified  in  committing 
acts  of  hostility. 

WHO    MUST    BE    DEEMED    A    BELLIGERENT 

1460.  All  the  individuals  who  constitute  the  regular  military 
force  in  the  service  of  the  state,  without  distinction  as  between 
combatants  and  non-combatants,  shall  be  regarded  as  belligerents. 

1461.  The  military  force  comprises: 
(a)  The  regular  arm 3'; 

(h)  Any  kind  of  militia  organized  in  conformity  with  the  military 
law  {territorial  militia,  landwehr,  national  or  cimc  guard); 

(c)  Volunteer  corps  militarily  organized  with  the  approval  of 
the  government,  having  a  responsible  chief  and  under  the  supreme 
authority  of  the  commander-in-chief; 

{d)  The  navy  and  merchant  ships  duly  converted  into  ships  of 
war,  and  privateers  duly  licensed,    (Cf.  rules  1613  et  seq.) 

(e)  The  crews  of  ships  of  war  and  war  craft. 

548 


EXERCISE    OF   THE   RIGHTS    OF   WAR  549 

1462.  The  volunteer  corps  shall  be  deemed  belligerents  in  war  on 
land  lohen  they  fulfill  the  follomng  conditions: 

(1)  To  be  commanded  by  a  person  responsible  for  his  subordinates; 

(2)  To  have  a  fixed  distinctive  emblem,  recognizable  at  a  distance; 

(3)  To  carry  arms  openly;  and 

(4)  To  conduct  their  operations  in  accordance  with  the  laws  and 
customs  of  war.  (Art.  1  of  the  Regulations  of  October  18,  1907,  of 
The  Hague  Conference.) 

1463.  The  inhabitants  of  a  territory  which  has  not  been  occupied, 
who,  on  the  approach  of  the  enemy,  spontaneously  take  up  arms  to 
resist  the  invading  troops  unthout  having  had  time  to  organize  the?ti- 
selves  in  accordance  with  Article  1,  shall  be  regarded  as  belligerents 
if  they  carry  arms  openly  and  if  they  respect  the  laws  and  customs  of 
war. 

Article  2  of  the  aforesaid  regulations. 

In  the  preceding  editions,  we  have  formulated  this  rule  as  follows: 

"The  inhabitants  of  a  country  not  militarily  occupied  by  the  enemy,  who, 
on  his  approach,  without  being  militarily  organized  resist  openly,  with  arms, 
to  defend  their  country,  and  who,  united,  commit  acts  of  hostility  and  exercise 
as  best  they  can  the  right  of  legitimate  defense,  shall  be  likewise  regarded  as 
belligerents."  (Rule  947,  1st  edition  (1890);  rule  1163,  2d  and  3d  ed.) 

We  had  not  deemed  it  necessary  that  the  population,  prompted  by  the 
sentiment  of  defending  their  native  soil  against  invaders,  should  be  bound  to 
comply  with  the  laws  and  usages  of  war  in  order  to  be  treated  as  belligerents. 
Should  inhabitants  who  defend  their  country  as  best  they  can  against  a  mili- 
tary attack  or  occupation  come  within  the  criminal  law,  without  being  able 
to  invoke  the  protection  of  international  law  applicable  in  time  of  war? 

REGULAR   MILITIA,    VOLUNTEERS,    SAVAGES 

1464.  It  is  the  duty  of  the  governments  of  civilized  states  to 
provide  by  their  laws  for  the  organization  of  militia,  so  as  to  utilize 
all  the  fighting  strength  of  their  country  and  thus  oppose  the  eneni}- 
with  corps  of  troops  militarily  organized  rather  than  rely  upon 
volunteers. 

1465.  Every  government  shall  have  the  right  to  employ  volun- 
teer corps,  but  shall  not  encourage  irregular  warfare  by  persons  not 
accustomed  to  military  discipline.  It  shall  see  that  volunteer 
corps  comply  strictly  with  the  laws  of  war  and  recognize  the  su- 
preme authority  of  the  commander-in-chief. 

1466.  No  government  of  a  civilized  state  shall  have  the  right, 
even  in  case  of  necessity,  to  make  use  of  the  savages  of  its  colonial 


550  INTERNATIONAL   LAW    CODIFIED 

possessions,  who  wage  war  in  their  own  way  and  are  devoid  of  the 
sentiment  of  mihtary  honor  and  disciphne  h'ke  civiHzed  peoples. 

WHO    CAN   BE    CONSIDERED    A    BELLIGERENT   IN   A    CIVIL   WAR 

1467.  A  faction  which  conducts  an  armed  struggle  against  the 
troops  of  the  State  in  order  to  throw  off  the  authority  of  the  Gov- 
ernment, or  in  the  effort  to  secede  and  constitute  an  independent 
state,  may  be  recognized  as  a  belligerent  when  the  following  con- 
ditions are  present: 

(1)  That  the  insurrection  has  broken  out  in  a  portion  of  the 
territory  considerable  in  extent  and  the  insurgents  are  sufficiently 
numerous  and  militarily  organized  as  to  offer  serious  resistance  to 
the  armed  forces  of  the  State; 

(2)  That  the  armed  struggle,  having  regard  to  its  duration, 
extent,  political  object,  etc.,  assumes  the  character  of  war  between 
the  insurgent  party  and  the  State; 

(3)  That  the  insurgents  succeed  in  establishing,  somewhere  in 
the  territory  of  the  State,  a  government  which  is  so  organized  as 
to  give  the  movement  a  unity  of  direction,  and  that  they  are 
directed  and  controlled  by  a  commander-in-chief  whom  they  obey 
and  who  is  capable  of  assuming  responsibility  for  their  acts; 

(4)  That  the  insurgents  respect  the  principles  of  international 
law  and  comply  in  their  military  operations  with  the  laws  and 
usages  of  war. 

1468.  Even  though  the  insurgents  may  be  recognized  as  bellig- 
erents by  third  Powers,  that  fact  cannot  prevent  the  regularly 
established  government  which  they  are  opposing,  from  treating 
the  leaders  of  the  insurrection  as  rebels  or  as  guilty  of  high  treason. 

1469.  Every  state  which  has  recognized  the  insurgents  as  bel- 
ligerents is  bound  to  adhere  to  the  laws  and  usages  of  war  in  its 
relations  with  them  and  with  the  Government  they  are  opposing. 

1470.  When  the  State  against  which  the  insurrection  is  directed 
shall,  of  its  own  accord,  recognize  the  latter  as  belligerents,  their 
character  as  such  must  be  regarded  as  established  in  their  favor 
with  respect  to  all  third  Powers,  a  fact  which  makes  it  possible 
for  the  insurgents  to  require  from  all  parties  the  application  of  the 
laws  of  war  and  the  recognition  of  the  rights  and  duties  arising  out 
of  a  regular  war  between  two  independent  states. 


EXERCISE    OF   THE   RIGHTS    OF   WAR  551 

1471.  Recognition  as  belligerents  on  the  part  of  the  regularly 
established  Government  cannot  be  regarded  as  equivalent  to  the 
recognition  of  their  independence,  but  compels  the  State,  in  its 
relations  with  the  combatant  and  non-combatant  insurgents,  to 
apply  and  observe  in  their  entirety  the  laws  of  war. 


VOLUNTEERS 

1472.  Volunteers  and  irregulars  who,  without  the  express  au- 
thorization of  the  government  of  the  belligerent  state,  participate 
in  the  war,  can  be  regarded  as  belhgerents  and  require  the  applica- 
tion of  the  laws  of  war  under  the  following  conditions: 

(1)  That  they  be  of  a  considerable  number,  militarily  organized, 
and  subject  to  the  supreme  authority  of  a  commander-in-chief; 

(2)  That  they  carry  visible  arms; 

(3)  That  they  loyally  fight  for  the  principle  which  was  the  cause 
of  the  war; 

(4)  That  in  their  movements  they  conduct  themselves  as  soldiers 
and  observe  the  laws  and  usages  of  war  like  regular  troops. 

We  believe  that  a  distinction  should  be  made  between  bodies  of  volunteers 
which  take  part  in  the  military  operations  on  request  of  the  government  or 
with  its  consent,  and  those  which  are  occasionally  formed  in  the  course  of 
the  war,  usually  on  the  initiative  of  some  leader,  and  composed  of  individuals 
who  act  on  their  own  responsibility,  being  impelled  and  inspired  by  a  full 
belief  in  the  justice  of  the  cause  for  which  the  war  is  waged.  The  former  must 
be  considered  as  an  element  of  the  military  force  of  the  State  according  to 
rule  1461c.  The  latter  cannot  be  deemed  to  belong  to  the  military  force  of 
the  State.  Therefore,  in  order  that  volunteers  may  be  considered  as  soldiers, 
it  should  not  be  necessary  to  require  the  carrying  of  an  exterior  distinctive 
emblem  recognizable  at  a  distance.  When  fulfilling  the  conditions  set  forth 
in  our  rule,  the  belligerent  ought  not  to  be  regarded  as  beyond  the  pale  of 
international  law. 

Partisan  war  (guerilla)  can  really  become  unrestrained  because  it  leaves  the 
door  open  to  individual  initiative  and  can  easily  be  transformed  into  a  military 
venture  for  the  advantage  of  partisans.  The  principal  condition  of  the  recogni- 
tion of  irregulars  as  belligerents  ought  to  be  loyalty,  both  in  the  manner  of 
conducting  engagements  and  in  their  military  behavior,  refraining  from  surpris- 
ing the  enemy  by  deceit.  We  acknowledge  that  in  this  respect  much  must 
be  left  to  the  prudent  judgment  of  the  commander-in-chief,  but  he  must  not 
exceed  his  powers.  Thus,  we  think  that  the  chief  of  the  German  army  over- 
stepped his  authority  during  the  war  of  1870,  when  he  promulgated  the  fol- 
lowing proclamation: 

"Every  person  arrested,  who  desires  to  be  treated  as  a  prisoner  of  war, 
will  have  to  prove  his  character  as  a  French  soldier  by  exhibiting  the  order 
of  the  proper  authority  and  proving  that  he  was  called  to  perform  his  military 


552  INTERNATIONAL   LAW   CODIFIED 

service  and  that  his  name  is  entered  on  the  matriculation  book  of  a  corps 
militarily  organized  by  the  French  Government." 

1473.  In  case  the  government  calls  for  volunteers  for  the  de- 
fense of  the  country,  or  in  case  of  wholesale  levies,  all  the  citizens 
called  to  the  colors  and  those  who,  on  their  own  initiative,  may 
have  organized  themselves  into  military  corps,  shall  be  treated  as 
soldiers: 

(1)  When  they  openly  carry  arms  and  perform  acts  of  hostility 
without  treachery  or  dishonesty; 

(2)  When  they  are  commanded  by  a  responsible  chief; 

(3)  When  their  character  as  combatants  is  estabUshed  bj'-  their 
organizations,  movements  and  military  conduct. 


THOSE   HAVING   NO    RIGHT  TO    BE    CALLED    BELLIGERENTS 

1474.  It  is  impossible  to  grant  the  exercise  of  rights  of  war  to 
persons  militarily  organized,  however  considerable  their  number 
may  be,  when  they  make  use  of  armed  force  to  plunder  or  rob,  or 
commit  other  acts  contrary  to  international  law. 

1475.  Armed  bands  committing  hostile  acts  in  time  of  war  by 
engaging  in  operations  on  their  own  account  and  without  au- 
thorization of  the  Government  and,  when  necessary,  concealing 
their  identity  as  combatants,  cannot  invoke  the  application  of 
the  laws  of  war  nor  be  recognized  as  belligerents.  Acts  of  violence 
committed  by  them  shall  be  regarded  as  crimes  and  subject,  as 
such,  to  the  application  of  the  criminal  law. 

The  armed  bands  which  used  to  devastate  Southern  Italy,  sacking  private 
property,  were  militarily  organized  and  had  chiefs;  by  no  means,  however, 
could  they  rightfully  be  regarded  as  belligerents  when  they  made  use  of  their 
arms  to  violate  the  rights  of  private  persons.  Although  composed  of  a  con- 
siderable number  of  men,  they  were  merely  a  band  of  marauders  unworthy 
of  being  treated  like  enemies  of  the  State;  they  could  only  be  considered  as 
criminals. 

1476.  The  status  of  a  belligerent  may  be  refused  to  volunteer 
bodies  undertaking  a  mihtary  expedition  without  authorization 
or  tacit  connivance  of  the  Government,  and  committing  acts  of 
war,  not  in  the  interest  of  the  State  or  for  the  triumph  of  an  idea 
representing  the  sentiments  of  a  considerable  part  of  the  people, 
but  for  the  fulfillment,  at  their  own  risk,  of ,  a  political  object. 


EXERCISE    OF   THE    RIGHTS    OF   WAR  553 

It  is  inadmissible  that  the  status  of  a  belligerent  should  be  conferred  upon 
every  one  undertaking  a  military  expedition  with  a  political  object  in  view. 
The  motive  or  purpose  of  certain  undertakings  will  no  doubt  have  to  be  con- 
sidered before  assigning  to  acts  of  violence  the  character  of  political  offenses. 
Nevertheless,  since  the  right  to  wage  war  is  not  a  private  right,  it  cannot  be 
usurped  by  any  given  number  of  persons  undertaking  a  military  expedition. 

1477.  The  status  of  a  belligerent  can  be  denied  to  any  volun- 
teer corps,  even  waging  war  in  the  interest  of  the  State  and  mili- 
tarily organized,  when  they  not  only  fail  to  wear  any  fixed  dis- 
tinctive emblem  recognizable  at  a  distance,  but  moreover  endeavor 
by  deceit  and  artifice  to  conceal  the  fact  that  they  are  soldiers 
in  order  to  wage  an  unfair  war. 

PERSONS  ATTACHED  TO  THE  SERVICE  OF  THE  ARMY 

1478.  The  armed  forces  of  the  belligerent  parties  may  consist  of 
combatants  and  non-combatants. 

In  the  case  of  capture  by  the  enemy,  both  have  a  right  to  be  treated 
as  prisoners  of  war. 

Article  3  of  the  annex  to  The  Hague  Convention  of  October  18,  1907,  4th 
convention  of  the  General  Act. 

1479.  All  persons  attached  to  the  service  of  troops,  although 
not  participating  in  the  operations  of  war  as  combatants  shall 
have  the  same  status  as  belligerents  and  be  subject  to  the  laws 
of  war. 

The  application  of  these  laws  shall  be  extended  to  persons  who, 
although  not  among  the  combatants  and  not  attached  to  the  serv- 
ice of  the  army,  are  in  the  area  of  war  for  a  purpose  not  incon- 
sistent with  the  purpose  of  war. 

1480.  In  like  manner,  the  right  to  be  regarded  as  belligerents 
may  be  claimed  by  all  persons  engaged  as  couriers,  messengers  or 
bearers  of  official  dispatches,  and  by  those  charged  with  main- 
taining communications  between  the  different  divisions  of  the 
army  or  navy,  in  whatsoever  manner  they  perform  their  respec- 
tive duties;  likewise  by  those  who  make  use  of  balloons  or  similar 
contrivances,  provided,  however,  they  are  not  in  a  position  to  be 
considered  as  spies. 


TITLE  VIII 
ACTS  OF  HOSTILITY  IN  WAR  ON  LAND 

LAWFUL   AND    UNLAWFUL    ACTS 

1481.  Belligerents  have  not  an  unlimited  right  with  respect 
to  the  means  to  be  employed  to  injure  the  enemy. 

Article  22  of  the  Regulations  respecting  the  laws  and  customs  of  war  on 
land,  annexed  to  the  Convention  of  October  18,  1907,  the  4th  of  the  General 
Act  of  The  Hague. 

N.  B.— These  will  always  be  cited  as  The  Hague  Regulations. 

1482.  Hostile  acts  calculated  to  attain  the  aims  of  war  may  be 
considered  lawful  if  they  weaken  the  enemy  so  as  to  compel  him 
to  capitulate,  provided  that  such  acts  are  not  committed  without 
necessity  therefor  and  do  not  exceed  the  military  object  in  view. 

War  must  not  tend  to  the  extermination,  destruction  and  annihilation  of 
the  enemy,  but  to  his  defeat  in  order  to  compel  him  to  surrender. 

Any  hostile  act  not  required  by  the  object  of  war  must  be  regarded  as  un- 
justifiable; any  act  exceeding  the  object  in  view  is  to  be  deemed  contrary  to 
the  laws  of  humanity. 

1483.  Any  hostile  act  shall  be  deemed  unlawful  which  increases 
unnecessarily  and  without  reason  the  sufferings  of  the  enemy,  as 
shall,  also,  any  act  which  may  be  regarded  as  barbarous,  cruel, 
unfair  and  treacherous. 

1484.  Any  act  of  unnecessary  destruction  committed  without 
an  order  of  a  superior  authority  shall  be  deemed  unlawful,  as 
well  as  acts  of  useless  destruction  authorized  and  ordered  but 
which  cannot  be  justified  by  the  necessities  of  the  defense,  or  . 
which  may  be  committed  in  excess  of  military  needs. 

The  principles  laid  down  in  the  preceding  rules  were  solemnly  recognized 
in  the  Convention  signed  at  St.  Petersburg  on  December  11,  1868,  to  which 
the  majority  of  civilized  states  have  adhered.  It  was  concluded  with  the 
object  of  prohibiting  the  use,  in  time  of  war,  of  explosive  projectiles  weighing 
less  than  400  grams  or  charged  with  inflammable  or  fulminating  material. 
In  the  preamble  to  this  Convention  the  just  principles  which  must  inspire 
hostile  acts  in  wars  between  nations  are  clearly  stated  as  follows: 

554 


ACTS    OF    HOSTILITY    IN    WAR    ON    LAND  555 

"Whereas,  the  progress  of  civiHzation  should,  so  far  as  possible,  result  in 
an  attenuation  of  the  horrors  of  war; 

"Whereas,  the  sole  legitimate  aim  which  states  ought  to  entertain  during 
war  is  the  weakening  of  the  military  forces  of  the  enemy; 

"Whereas,  for  this  purpose,  it  is  sufficient  to  place  hors  decomhat  the  greatest 
possible  number  of  men; 

"  Whereas,  this  object  would  be  exceeded  by  the  employment  of  arms  which 
would  uselessly  aggravate  the  sufferings  of  men  placed  hors  de  combat,  or 
would  render  their  death  inevitable; 

"Whereas,  the  employment  of  such  arms  would  therefore  be  contrary  to 
the  laws  of  humanity.  ..." 

The  militarj^  penal  code  of  Italy  (art.  252)  provides  the  penalty  of  death 
by  degradation  for  any  person  who,  without  superior  orders  and  constraint 
impelled  by  the  necessity  of  defense,  shall  set  fire  to  a  house  or  other  building 
in  the  enemy's  country. 


ACTS  PROHIBITED  ACCORDING  TO  THE  LAWS  OF  HONOR  AND  CUSTOMS 
OF    WAR   OF   CIVILIZED    STATES 

1485.  Besides  the  hostile  acts  contemplated  in  special  con- 
ventions concluded  between  them,  we  should  consider  as  abso- 
lutely prohibited  in  wars  between  civilized  states,  those  acts 
which  were  specifically  prohibited  by  the  states  represented  at 
the  Hague  Conference  of  1907,  namely: 

(a)  To  employ  -poison  or  poisoned  weapons; 

(h)  To  kill  or  wound  treacherously  any  individuals  belonging  to 
the  hostile  nation  or  army; 

(c)  To  kill  or  wound  an  enemy  who,  having  laid  down  his  arms, 
or  having  no  longer  means  of  defense,  has  surrendered  at  discretion; 

(d)  To  declare  that  no  quarter  will  be  given; 

(e)  To  employ  arms,  projectiles,  or  materials  calculated  to  cause 
unnecessary  suffering; 

(/)  To  make  improper  use  of  a  flag  of  truce,  of  the  national  flag, 
or  of  the  military  insignia  and  uniform  of  the  enemy,  as  well  as  the 
distinctive  badges  of  the  Geneva  Convention; 

(g)  To  destroy  or  seize  the  enemy's  property,  unless  such  destruc- 
tion or  seizure  be  imperatively  demanded  by  the  necessities  of  war; 

(h)  To  declare  abolished,  suspended,  or  inadmissible  in  a  court  of 
law  the  rights  and  actions  of  the  nationals  of  the  hostile  party. 

A  belligerent  is  likewise  forbidden  to  compel  the  nationals  of  the 
hostile  party  to  take  part  in  the  operations  of  war  directed  against 
their  own  country,  even  if  they  were  in  the  belligerent  service  before 
the  commencement  of  the  war. 


556  INTERNATIONAL   LAW    CODIFIED 

Such  is  the  text  of  article  23  of  The  Hague  Regulations. 

In  rule  1214  of  our  2d  and  3d  editions,  sub-head  (d),  which  we  had  advo- 
cated, was  formulated  as  follows: 

(c)  Refusing  quarter  to  a  garrison,  even  if  it  should  be  done  in  execution 
of  a  previous  declaration  that  no  quarter  would  be  given. 

We  thought,  and  we  still  think,  that  the  unlawful  act  must  consist  in  the 
refusal  to  give  quarter,  as  the  declaration  might  be  made  for  the  purpose  of 
intimidation. 

Sub-head  (e)  was  thus  formulated  in  the  same  rule  1214: 

(e)  The  use,  in  the  armed  conflict,  of  projectiles  and  materials  calculated 
to  cause  unnecessary  damage  and  wounds  painful  and  difficult  to  heal. 

The  subhead  thus  formulated  seems  to  us  more  comprehensible  and  humani- 
tarian. 

1486.  To  massacre  persons  who  surrender  at  discretion  or  a 
garrison  offering  to  capitulate  cannot  be  justified  either  on  the 
ground  of  reprisals,  or  by  reason  of  the  difficulty  of  insuring  the 
custody  and  providing  for  the  maintenance  of  the  prisoners  of 
war  thus  placed  in  the  power  of  the  hostile  army. 

The  right  of  life  and  death  is  the  belligerent's  as  against  the  enemy  who 
attacks  him  with  arms  and  is  committing  hostile  acts.  Any  killing  inflicted 
while  the  fight  is  in  progress  may  be  justifiable,  if  its  purpose  is  to  paralyze 
the  enemy's  forces  and  thus  induce  the  enemy  to  surrender.  The  combatant 
who  does  not  resist,  but  surrenders  unconditionally,  ceases  to  be  an  enemy 
and  can  never  be  killed;  his  massacre  could  not  be  justified  on  the  ground  of 
the  difficulty  of  caring  for  prisoners  of  war,  or  on  the  ground  of  retaliation  for 
a  similar  massacre  of  prisoners  of  war  by  the  opposing  forces.  Refusal  to 
give  quarter  to  a  garrison  which  offers  to  surrender  and  the  massacre  of  sol- 
diers who  have  laid  down  their  arms  can  never  constitute  legitimate  warfare. 
Murdering  a  man  is  always  a  crime. 

The  Italian  army  regulations  of  the  26th  of  November,  1882,  provide  as 
follows: 

"Art.  718. — Any  act  whatever  of  cruelty  and  barbarity  is  absolutely  pro- 
hibited, and  shall  be  severely  punished.  Respect  and  protection  are  due  to 
the  inhabitants  remaining  neutral,  both  in  their  persons  and  in  their  property. 

"Art.  719. — Whoever  abuses  or  despoils  enemies  unarmed,  sick,  wounded, 
or  dead;  whoever  sets  on  fire,  destroys  or  damages  without  necessity  the  prop- 
erty of  others,  is  liable  to  the  penalties  provided  by  the  Code." 

These  articles  are  reproduced  verbatim  in  the  regulations  of  September  16, 
1896,  at  present  in  force. 


RIGHTS   WHILE   ENGAGED    IN   FIGHTING 

1487.  A  belligerent  may  attack,  fire  upon  and  kill  any  individual 
who  takes  an  active  part  in  the  war,  so  long  as  he  resists  with 
arms  or  commits  hostile  acts. 

1488.  A  belligerent  has  no  right  to  direct  his  attack  against 


ACTS   OF   HOSTILITY    IN   WAR   ON   LAND  557 

individuals  who  accompany  the  troops  and  take  no  active  part 
in  the  fighting.  Nevertheless,  the  kilUng  of  such  persons  in  the 
heat  of  battle  must  be  regarded  as  the  consequence  of  the  regular 
exercise  of  the  rights  of  war. 

RIGHTS   OF   PERSONS    WHO    FALL   INTO   THE    POWER   OF   THE   ENEMY 

1489.  Any  man  committing  hostile  acts  by  taking  an  active 
part  in  the  war,  and  having  the  status  of  or  assimilated  to  a  bel- 
ligerent (c/.  rules  1455  et  seq.)  shall  be  treated  as  a  prisoner  of  war 
provided  he  has  laid  down  his  arms,  or  offered  to  surrender,  or 
otherwise  shall  have  fallen  into  the  power  of  the  enemy. 

The  same  right  appertains  to  individuals  belonging  to  a  troop 
or  to  a  garrison  which  shall  have  collectively  capitulated  or  sur- 
rendered unconditionally. 

1490.  The  fact  that  a  commander  or  army  chief  should  declare 
his  unwillingness  to  recognize  as  belligerents  those  who  are  prop- 
erly entitled  to  claim  that  status,  could  not  legally  justify  his 
refusal  to  apply  the  laws  of  war  to  persons  who  have  fallen  into 
his  power,  or  deprive  them  of  the  rights  which,  by  customary 
international  law,  they  may  properly  claim  as  prisoners  of  war. 

1491.  Belligerents  must  not  exercise  the  rights  of  war  against 
wounded  enemies  who  are  in  mihtary  hospitals  or  ambulances 
for  the  purpose  of  receiving  the  necessary  care  and  treatment, 
but  must  observe  the  rules  stipulated  in  the  Geneva  Convention 
of  August  22,  1864,  concerning  the  care  of  the  sick  and  wounded 
in  time  of  war. 

SPIES  ^ 

1492.  Any  person,  whether  belonging  to  the  enemy's  army  or 
not,  whf  '  idestinely,  secretly,  under  false  pretenses  or  in  dis- 
guise, enters  the  hostile  lines  and  tries  to  procure  information 
useful  for  military  purposes  shall  be  deemed  a  spy. 

1493.  A  soldier  not  in  disguise  cannot  be  regarded  as  a  spy  even 
though  he  has  secretly  entered  the  zone  of  operations  of  the  hostile 
army  in  order  to  secure  information  useful  to  combat  the  opposing 
forces.     In  like  manner,  a  non-military  person,  charged  with  the 

'  We  reproduce  without  ehange  the  rules  laid  down  in  the  second,  third  and 
fourth  editions  of  this  work. 


558  INTERNATIONAL  LAW   CODIFIED 

transmission  of  dispatches  intended  for  the  army  of  his  country, 
who  openly  fulfills  his  mission,  cannot  be  regarded  as  a  spy. 

1494.  Neither  are  those  persons  to  be  regarded  as  spies  who, 
as  soldiers  or  civilians,  have  endeavored,  by  means  of  a  balloon, 
to  maintain  communications  between  the  various  sections  of  an 
army  or  of  a  country,  or  who  have  approached  the  zone  of  opera- 
tions of  the  hostile  army  for  the  purpose  of  obtaining  useful  in- 
formation. 

In  the  case  of  individuals  who  make  use  of  a  balloon  in  order  to  approach 
the  enemy's  camp  or  to  obtain  information,  it  cannot  be  held  that  they  act 
clandestinely,  under  false  pretenses  or  under  disguise  so  as  to  be  characterized 
as  spies.  The  belligerent,  no  doubt,  has  the  right  to  attack  and  kill  them;  but 
if  they  fall  into  the  enemy's  power,  they  will  have  to  be  treated  as  prisoners 
of  war  and  not  as  spies,  for  they  will  have  performed  a  legitimate  act  of  war- 
fare in  thus  openly  attempting  to  get  useful  information. 

1495.  Municipal  law  may  assimilate  to  espionage  and  punish  as 
such,  or  even  more  severely,  the  crime  of  a  citizen  or  of  a  foreigner 
residing  in  the  territory  of  the  state  who  shall  impart  information 
to  the  enemy  or  maintain  relations  with  him  for  the  purpose  of 
communicating  information  useful  for  his  operations;  and  what- 
ever the  nature  of  these  facts  and  regardless  of  the  severity  of  the 
punishment  inflicted,  the  provisions  of  the  local  law  as  to  juris- 
diction, procedure  and  punishment  may,  without  condition,  be 
applied  to  any  person  residing  within  the  state. 

RIGHTS   OF   THE   BELLIGERENTS   RESPECTING   SPIES 

1496.  It  shall  not  be  considered  contrary  to  the  usages  of  war 
nor  to  the  military  honor  of  the  commander  of  an  army  to  make 
use  of  secret  agents  or  spies  in  order  to  obtain  information  which 
he  may  need. 

1497.  A  belligerent  has  the  right  to  inflict  severe  punishment, 
according  to  martial  law,  upon  any  person  who  may  be  considered 
a  spy,  provided  that  such  person  falls  into  his  power  while  caught 
in  the  act  of  spying.  The  belligerent  is  bound,  however,  to  re- 
mand the  offender  to  a  court  which,  under  martial  law,  is  com- 
petent to  try  and  sentence  him. 

The  rules  concerning  spies,  established  in  common  accord  by  the  states 
represented  at  The  Hague,  are  as  follows  (4th  Convention,  Annex) : 

Art.  29. — A  person  can  only  he  considered  a  spy  when,  acting  clandestinely 
or  under  false  pretenses,  he  obtains  or  endeavors  to  obtain  injormation  in  the  zone 


ACTS   OF  HOSTILITY   IN   WAR  ON   LAND  559 

of  operatioiis  of  a  belligerent,  with  the  intention  of  communicating  it  to  the  hostile 
party. 

Thus,  soldiers  not  wearing  a  disguise  who  have  penetrated  into  the  zone  of 
operations  of  the  hostile  army,  are  not  considered  spies.  Similarly,  the  following 
are  not  considered  spies:  Soldiers  and  civilians,  carrying  out  their  7nissio7i  openly, 
intrusted  VDith  delivery  of  dispatches  intended  either  for  their  own  army  or  for  the 
enemy's  army.  To  this  class  belong  likewise  persons  sent  in  balloons  for  the  pur- 
pose of  carrying  dispatches  and,  generally,  of  maintaining  communications  be- 
tween the  different  parts  of  an  army  or  a  territory. 

Art.  30. — A  spy  taken  in  the  act  shall  not  be  punished  without  previous  trial. 

Art.  31. — A  spy  who,  after  rejoining  the  army  to  which  he  belongs,  is  subse- 
quently captured  by  the  enemy,  is  treated  as  a  prisoner  of  war,  and  incurs  no 
responsibility  for  his  previous  acts  of  espionage. 


GUIDES 

1498.  A  belligerent  has  no  right  to  compel  the  citizens  of  the 
hostile  country,  who  fall  into  his  power,  to  act  as  guides  for  him 
or  to  impart  to  him  the  information  he  needs.  He  shall  have 
the  right,  however,  to  punish  those  who  knowingly  have  volun- 
teered their  services  for  the  purpose  of  misleading  him. 

This  rule  may  be  considered  as  based  upon  the  last  paragraph  of  article  23 
of  The  Hague  Regulations,  which  formally  forbids  the  belligerent  to  force 
the  citizens  of  the  hostile  state  to  participate  in  the  operations  of  war  directed 
against  their  country.    Supra,  rule  1485. 

1499.  A  i>elligerent  state  shall  have  the  right  to  punish,  as 
traitors  to  their  country,  such  of  its  citizens  as  voluntarily  shall 
have  acted  as  guides  to  the  enemy;  but  it  would  be  unfair  and 
unjust  to  punish  those  who,  under  duress  of  the  enemy  by  force, 
violence  or  threat  of  death,  have  done  that  which,  under  the  cir- 
cumstances of  the  case,  they  were  unable  to  refuse  to  do  while  in 
the  enemy's  power. 

FLAGS   OF   TRUCE  ^ 

1500.  A  pvirson  is  regarded  as  bearing  a  flag  of  truce  if  he  has 
been  authorized  by  the  belligerent  to  enter  into  communication 
with  the  enemy  and  he  appears  as  such  for  the  purpose  of  treating 
and  negotiating  during  the  course  of  the  hostilities,  making  him- 
self known  by  means  of  a  distinctive  sign,  a  white  flag,  recognized 
under  the  usages  of  war. 

'  We  reproduce  the  rules  proi)oscd  in  the  .second,  third  and  fourth  editions. 


560  INTERNATIONAL  LAW   CODIFIED 

Persons  who  accompany  him,  such  as  flag-bearer,  trumpeter  or 
ch'ummer,  must  be  plainly  identified  with  the  flag  of  truce. 

1601.  The  military  commander  of  the  enemy  is  not  in  all  cases 
and  under  all  circumstances  obliged  to  receive  the  flag  of  truce, 
or  to  stop  firing  when  the  enemy  sends  it  to  him  for  the  purpose 
of  negotiating  during  the  course  of  the  hostilities.  It  is  optional 
with  him  to  decide  whether  or  not  the  persons  presenting  the  flag 
of  truce  shall  be  received. 

1502.  It  is  always  contrary  to  military  honor  to  fire  at  the  bearer 
of  a  flag  of  truce  approaching  the  zone  of  action,  even  when  the 
commander  is  not  inclined  to  receive  him  or  later  refuses  to  admit 
him. 

If,  however,  the  commander  should  refuse  to  receive  the  bearer 
of  a  flag  of  truce  by  expressly  declaring  his  unwillingness  to  nego- 
tiate with  the  enemy's  representative  within  a  certain  time,  and 
if,  after  such  refusal  and  due  notice,  the  flag  of  truce  should  again 
be  presented,  its  bearer  could  be  treated  as  an  enemy  who, 
in  bad  faith,  attempts  to  approach  the  lines  of  the  other 
belligerent. 

1603.  A  commander  consenting  to  receive  a  flag  of  tiiice  may 
take  all  precautionary  steps  that  he  may  deem  necessary  to  pre- 
vent the  flag-bearer  from  taking  advantage  of  his  stay  in  the  lines, 
even  to  the  extent  of  temporarily  detaining  the  envoy  if,  in  the 
opinion  of  the  commander,  he  was  able,  even  involuntarily  and 
in  good  faith,  to  ascertain  something  which  it  would  be  to  the 
commander's  prejudice  to  have  the  enemy  know. 

1504.  The  bearer  of  a  flag  of  truce  who  should  fail  to  respect 
the  conditions  imposed  for  its  reception  or  who,  taking  undue 
advantage  of  his  position,  should  surreptitiously  procure  or  at- 
tempt to  procure  information,  would  thereby  lose  all  right  of 
immunity  and  could  be  declared  a  prisoner  of  war.  Indeed,  if  it 
should  clearly  appear  from  the  circumstances  that  the  envoy  has 
taken  undue  advantage  of  his  position  and  committed  an  act  of 
treachery,  he  could  be  regarded  as  a  spy  and  summarily  punished 
as  such. 

1605.  The  bearer  of  a  flag  of  truce  should  always  carry  out  his 
mission  scrupulously  and  honestly.  It  shall  be  deemed  abso- 
lutely contrary  to  military  honor  to  take  improper  advantage 
of  his  privileged  position. 


ACTS   OF   HOSTILITY    IN    WAR    ON   LAND  561 

The  rules  respecting  flags  of  truce  adopted  by  the  states  represented  at 
The  Hague  are  as  follows : 

Art.  32. — A  person  is  regarded  as  bearing  a  flag  of  truce  who  has  been  au- 
thorized by  one  of  the  belligerents  to  enter  into  communication  with  the  other,  and 
who  advances  bearing  a  ivhite  flag.  He  has  a  right  to  inviolability,  as  well  as  the 
trumpeter,  bugler  or  drummer,  the  flag-bearer  and  interpreter  who  may  accompany 
him. 

Art.  33. — The  commander  to  whom  a  flag  of  truce  is  sent  is  not  in  all  cases 
obliged  to  receive  it. 

He  tnay  take  all  the  necessary  steps  to  prevent  the  envoy  taking  advantage  of 
his  jnission  to  obtain  information. 

In  case  of  abuse,  he  has  the  right  to  detain  the  envoy  temporarily. 

Art.  34. — The  envoy  loses  his  right  of  inviolability  if  it  is  proved  in  a  clear 
and  incontestable  manner  that  he  has  taken  advantage  of  his  privileged  position 
to  provoke  or  commit  an  act  of  treachery. 


RIGHTS  OF  THE  BELLIGERENTS  AGAINST  PERSONS  NOT  OF  THE  ARMY 

1506.  Persons  and  bands  who,  while  not  belonging  to  the  army 
and  not  meeting  the  conditions  required  to  be  considered  as  bel- 
ligerents, accomplish  during  the  war  acts  of  hostility,  undertake 
marauding  expeditions,  destroy  property,  or  maltreat  the  enemy's 
soldiers,  have  no  right  whatever  to  be  treated  as  public  enemies, 
and  cannot  invoke  the  application  of  the  laws  governing  com- 
batants. If  they  fall  into  the  power  of  either  belligerent,  they  are 
subject  to  the  criminal  laws  and  may  be  punished  as  felons,  plun- 
derers or  pirates,  and  cannot  claim  any  of  the  privileges  of  prisoners 
of  war. 

1507.  All  nationals  of  the  hostile  state,  who  cannot  be  deemed 
public  enemies  and  do  not  commit  acts  of  hostility,  must  be  con- 
sidered as  peaceful  citizens  and  can,  during  the  war,  continue 
freely  to  exercise  their  rights  and  enjoy  their  property  under  the 
protection  of  international  law. 

The  belligerents  are  not  permitted  to  apply  the  laws  of  war  to 
or  treat  as  enemies  the  citizens  of  the  opposing  state  who  are  in 
their  coun^^-v.  or  even  in  the  zone  of  military  operations,  when  they 
do  not  ta- ,.  .  ly  direct  or  indirect  part  in  the  war,  but  continue  to 
carry  on  their  ordinary  callings  as  in  time  of  peace. 

JOURNALISTS   AND    CORRESPONDENTS 

1508.  No  journalist  or  newspaper  correspondent  can  be  per- 
initted  to  follow  armies  without  special  authorization  of  the  com- 


562  INTERNATIONAL  LAW   CODIFIED 

mander-in-chief,  who  may  prescribe  such  conditions  and  regula- 
tions in  the  case  as  he  may  deem  necessary. 

1509.  The  commander  of  the  belhgerent  army  may  enforce  any 
measures  that  he  may  deem  necessary  to  control  the  news  service 
of  journalists,  for  the  purpose  of  preventing  them,  through  lack 
of  discretion,  from  jeopardizing  the  success  of  the  military  opera- 
tions and  movements. 

1510.  Any  person  wishing  to  avail  himself  of  this  authorization 
to  follow  the  belligerent  armies,  must  state  his  name  and  that 
of  the  newspaper  or  news  agency  he  represents,  and  give  his 
word  of  honor  that  he  will  send  out  communications  only  in 
strict  comphance  with  the  conditions  imposed  by  the  commander- 
in-chief. 

Any  violation  of  the  regulations  prescribed  will  justify  the 
withdrawal  of  the  authorization  and  even,  under  certain  circum- 
stances, the  imprisonment  of  the  journalist  or  correspondent  for 
such  length  of  time  as  the  commander  may  deem  adequate,  and 
during  such  imprisonment  the  journalist  or  correspondent  shall 
be  treated  as  a  prisoner  of  war. 

1511.  As  a  rule,  ciphered  correspondence,  as  well  as  direct  and 
uncontrolled  correspondence,  shall  be  considered  prohibited,  in 
case  the  commander  shall  have  subjected  such  correspondence  to 
the  previous  revision  of  an  officer  entrusted  with  power  to 
censor  or  revise  all  communications  liable  to  jeopardize  military 
interests. 

1512.  Any  newspaper  correspondent  may  be  punished,  if  it  is 
proved  that  he  is  spreading  false  news  or  is  taking  advantage  of 
the  authorization  he  has  obtained,  by  publishing  in  the  press  in- 
formation gained  and  communicated  without  previously  sub- 
mitting it  to  the  approval  of  the  official  censor. 

He  may  even  be  treated  as  a  spy,  if  it  appears  from  the  circum- 
stances that,  under  the  guise  of  a  newspaper  correspondent,  he  has 
endeavored  clandestinely  to  obtain  news  and  information  for  the 
purpose  of  favoring  the  militaiy  operations  of  the  enemy,  and  has 
divulged  information  thus  obtained. 


ACTS   OF   HOSTILITY    IN    WAR   ON    LAND  563 

DESERTERS 

1513.  Each  commander  of  the  beUigerent  armies  shall  have  the 
right,  without  violating  the  law  of  military  honor,  to  welcome 
enemy  deserters. 

It  would,  however,  be  contrary  to  the  laws  of  honor  to  resort 
to  corruption,  dishonest  actions  and  immoral  means  for  the  pur- 
pose of  inciting  desertion  and  rebellion.  The  use  of  such  means 
ought  to  constitute  a  criminal  offense. 

1514.  Each  commander  of  the  hostile  armies  may  apply  the 
laws  against  deserters  to  those  who,  after  desertion,  enter  the 
service  of  the  enemy  and  are  later  captured  in  the  course  of  the 
operations  of  war,  even  though,  when  captured,  they  constitute 
part  of  a  body  of  the  enemj'  which  surrendered  and  had  the  right 
to  demand  the  application  of  the  laws  governing  prisoners  of  war. 


TITLE  IX 
MILITARY  OPERATIONS  DURING  WAR  ON  LAND 

LAWFUL  MEANS  OF  ATTACK  AND  DEFENSE 

1515.  Belligerents  may  resort  to  all  means  of  attack  or  defense 
which,  according  to  military  science,  may  be  deemed  effective  for 
the  purpose  of  weakening,  paralyzing  or  destroying  the  enemy's 
military  forces. 

They  may  undertake  any  military  operation  calculated  to  attain 
the  object  of  war  so  as  to  compel  the  enemy  to  acknowledge  his 
defeat, 

SIEGE  ^ 

1516.  It  shall  be  deemed  lawful  in  time  of  war  to  lay  siege  to  any 
fortified  position,  or  to  any  position  whatever,  if  it  offers  resistance, 
for  the  purpose  of  cutting  off  all  communications  and  of  forcing  its 
defenders  to  surrender  through  dire  want  of  food,  ammunition  or 
other  needful  supplies. 

1517.  Investment  of  a  place  executed  by  means  of  a  siege  or 
blockade  is  regarded  as  a  lawful  means  of  attack  between  belliger- 
ents, even  when  resorted  to  for  the  purpose  of  occupying  an  un- 
fortified position,  whether  the  resistance  comes  from  the  troops  or 
from  the  inhabitants. 

1518.  The  siege  must  be  effective.  It  will  be  regarded  as  such 
when  the  place  is  invested  by  the  establishment  around  it  of  a 
cordon  of  troops  and  by  the  occupation  of  positions  calculated  to 
prevent  any  communication. 

1519.  A  commander  wishing  to  lay  siege  to  a  fortress  or  to  a 
city  must  make  his  intention  known  through  a  public  proclama- 
tion. Once  this  formality  has  been  observed,  any  act  of  private 
persons,  accomplished  with  a  view  to  maintaining  communica- 

1  We  reproduce  the  rules  proposed  in  the  second,  third  and  fourth  editions 
respecting  siege  and  bombardment. 

564 


MILITARY   OPERATIONS    DURING    WAR    ON   LAND  565 

tions  with  the  besieged  city  or  fortress  and  especially  for  the  pur- 
pose of  supplying  the  inhabitants  with  food  and  supplies  designed 
to  prolong  their  resistance,  shall  be  regarded  as  an  act  of  hostility. 

RIGHTS   RESPECTING    PERSONS   IN   CASE   OF   SIEGE 

1620.  The  commanders  of  besieged  fortresses  must  exercise 
their  powers  in  conformity  with  the  military  law  of  their  country 
and  provide  for  the  necessities  of  defense  and  resistance.  It  shall 
be  deemed  one  of  their  rights  to  order  all  the  inhabitants  who 
happen  to  be  in  the  stronghold  and  have  not  sufficient  means 
of  subsistence,  to  leave  it  before  the  siege  begins.  These  com- 
manders shall  even  have  the  right  to  resort  to  force  to  compel  such 
inhabitants  to  leave,  and  also  the  right  to  expel,  without  any 
formality,  all  foreigners  and  suspected  persons. 

1521.  After  the  proclamation  of  the  siege  and  the  investment  of 
the  place,  it  shall  be  deemed  contrary  to  the  laws  of  war  to  order 
the  departure  of  peaceful  citizens  who  happen  to  be  in  the  besieged 
place. 

1522.  The  commander  of  the  army  which  is  preparing  for  the 
siege  shall  have  no  right  to  prevent  peaceful  citizens  desirous  of 
leaving  the  besieged  place  or  who,  in  anticipation  of  the  siege,  may 
have  been  expelled  by  the  enemy  commander,  from  freely  depart- 
ing from  the  zone  of  military  operations.  But  if,  after  the  siege 
has  been  declared  and  effected,  the  commander  of  the  place,  in 
order  to  prolong  resistance  and  reduce  the  consumption  of  the 
limited  supply  of  stores,  has  compelled  all  persons  not  engaged  in 
defending  the  garrison  to  leave  the  city,  it  would  be  proper  for  the 
commander  of  the  besieging  army  to  make  use  of  the  least  rigorous 
means  to  force  the  expelled  persons  to  re-enter  the  besieged  place 
and  thereby  curtail  resistance. 

In  such  a  case,  it  should  be  considered  an  act  contrary'  to  the 
laws  '  '  r  for  the  commander  of  the  besieged  place  to  refuse  to 
the  peacciul  inhabitants  expelled  the  privilege  of  re-entering  the 
city,  thus  exposing  them  to  serious  and  inevitable  dangers. 

1523.  Should  hostile  prisoners  of  war  happen  to  be  in  the  be- 
sieged place,  the  (commander  would  have  the  absolute  right  of 
expelling  them  even  after  the  siege  had  commenced,  if  he  deemed 
such  action  in  the  interest  of  prolonged  resistance. 


566  INTERNATIONAL   LAW    CODIFIED 

BOMBARDMENT 

1524.  Bombardment  may  be  resorted  to  only  in  time  of  war  as  a 
direct  means  of  obtaining  the  surrender  of  a  fortress  or  of  a  fortified 
place,  or  as  an  auxiliary  means  in  the  operation  of  a  blockade  or 
siege. 

This  method  of  attack  shall  not  be  permitted  against  cities  or 
thickly  populated  communities  which  are  not  defended  and  for- 
tified. 

Notifying  a  bombardment,  in  the  case  contemplated  in  the  second  part  of 
the  rule,  must  be  deemed  an  obligatory  formality  indispensable  for  allowing 
peaceful  citizens  to  provide,  so  far  as  possible,  for  the  protection  of  their  per- 
sons and  property.  It  may  also  be  considered  as  an  effective  measure  toward 
coercing  the  commander  to  surrender,  in  order  not  to  expose  the  lives  and 
property  of  peaceful  citizens  to  grave  and  inevitable  dangers. 

1525.  The  commander  shall  have  the  right  to  lay  siege  to  and 
bombard,  without  formality,  an  isolated  fortress  which  is  defended 
by  the  enemy;  but  if  such  fortress  is  attached  to  a  city  or  a  place 
inhabited  by  a  considerable  number  of  peaceful  citizens,  he  shall  be 
obliged,  before  commencing  the  bombardment,  to  give  notice 
thereof  to  the  hostile  authorities,  so  as  to  restrict  this  means  of 
attack  to  the  object  in  view. 

1526.  Reasonable  precautions  shall  be  taken  to  direct  the  bom- 
bardment against  fortified  points  and,  so  far  as  practicable,  to- 
ward sparing  private  property,  public  buildings  dedicated  to 
charitable  purposes,  science  and  religion,  and  military  hospitals, 
provided  always  that  these  buildings  are  not  at  the  same  time 
being  used  for  military  purposes. 

The  Italian  army  regulations  of  1882,  provide  as  follows: 
"Art.  705. — The  use  of  arms  is  prohibited  against  enemy  hospitals  and 
ambulances  and  against  the  personnel  thereof,  whenever  they  are  performing 
their  special  duties  and  bear  the  distinctive  emblems  established  by  the  Geneva 
Convention.  (For  hospitals  and  ambulances,  white  flag  with  red  cross,  for  the 
personnel,  white  brassard  with  red  cross.) 

1527.  The  throwing  of  explosives  and  incendiary  projectiles 
with  a  view  to  destroying  the  houses  of  the  inhabitants  and  com- 
mercial establishments  shall  not  in  any  case  be  considered  as  a 
lawful  war  operation,  even  if  it  should  be  done  with  the  purpose  of 
terrorizing  the  inhabitants  and  inducing  surrender  of  the  place. 

1528.  The  commander  of  a  fortress  or  besieged  city  must  in- 
dicate the  presence  of  public  buildings  which  are  not  employed 


MILITARY    OPERATIONS   DURING    WAR   ON    LAND  567 

for  the  purposes  of  defense,  by  means  of  plainly  visible  signs,  which 
signs  must  be  made  known  to  the  besieger. 

Moreover,  it  is  always  to  be  considered  contrary  to  the  laws  of 
war  and  to  miUtary  honor  in  any  way  to  employ,  for  purposes  of 
defense,  any  buildings  which  have  been  pointed  out  as  being  de- 
voted to  pacific  use. 

1529.  Bombardment  of  a  closed  and  defended  city  shall  be 
deemed  an  unfair  means  of  attack,  when  practiced  for  the  sole 
purpose  of  causing  damage  and  intimidating  the  inhabitants  and 
not  for  the  direct  purpose  of  compelling  the  enemy  to  surrender. 
This  should  be  true  especially  when  the  occupation  of  the  defended 
locality  cannot  have  a  serious  influence  on  the  ultimate  issue  of  the 
war,  and  when  circumstances  clearly  indicate  that  the  belligerent 
has  merely  utilized  the  defense  of  the  city  as  a  pretext  to  bombard 
it  and  thus  injure  and  terrify  the  peaceful  citizens  therein. 

We  have  reproduced  without  change  the  rules  proposed  in  our  first  three 
editions. 

Those  of  The  Hague  Regulations  respecting  bombardment  are  as  follows: 

Art.  25. — The  attack  or  bombardment,  by  whatever  means,  of  towns,  villages, 
dwellings,  or  buildings  which  are  undefended  is  prohibited. 

Art.  26. — The  officer  in  command  of  an  attacking  force  must,  before  com- 
mencing a  bombardment,  except  in  cases  of  assault,  do  all  in  his  power  to  warn 
the  authorities. 

Art.  27. — In  sieges  and  bombardments,  all  necessary  steps  must  be  taken  to 
spare,  as  far  as  possible,  buildings  dedicated  to  religion,  art,  science,  or  charitable 
purposes,  historic  monuments,  hospitals,  and  places  where  the  sick  and  wounded 
are  collected,  provided  that  they  are  not  being  used  at  the  time  for  military  purposes. 
It  is  the  duty  of  the  besieged  to  indicate  the  presence  of  such  buildings  or  places 
by  distinctive  and  visible  signs,  which  shall  be  notified  to  the  enemy  beforehand. 

DESTRUCTION   AND    FIRE 

1530.  It  shall  be  permissible  to  devastate  the  property  of  the 
enemy,  to  set  on  fire  and  voluntarily  destroy  his  buildings  and 
things  appurtenant  thereto,  whenever  this  may  be  necessary  in 
order  t'  -^^^ain  the  objects  of  war;  but  devastation  and  wanton 
destrucuOL  for  the  sole  purpose  of  vengeance  must  be  regarded  as 
unlawful  and  contrary  to  the  laws  of  war. 

It  shall  likewise  be  permissible  to  devastate  and  destroy  private 
property;  but  only  when  such  action  may  be  considered  as  required 
by  the  actual  necessities  of  war  and  military  operations. 

1531.  In  no  case  must  the  acts  of  destruction  often  imposed 


568  mTERNATIOXAL    LAW    CODIFIED 

by  the  necessities  of  war  and  of  military  operations  exceed,  with- 
out reason,  the  object  intended  to  be  attained. 

1532.  It  shall  be  considered  barbarous  to  destroy  commercial 
ports,  public  buildings  dedicated  to  peaceful  use,  objects  of  science 
and  art  and  collections  which  are  in  private  and  pubHc  buildings, 
even  when  the  belligerent  has  taken  possession  of  a  city  by  assault, 
siege,  or  bombardment. 

1533.  Commanders  of  armies  must  forbid  and  prevent  anj^ 
unjustified  act  of  barbarism  and  punish  soldiers  who,  without 
military  necessity,  set  on  fire,  destroy  or  damage  the  dwellings  of 
private  citizens  of  enemy  nationality. 

1534.  It  is  the  duty  of  governments  to  determine  by  law,  which 
acts  directed  against  enemy  property  shall  be  deemed  crimes  in 
time  of  war,  and  to  provide  for  the  punishment  of  those  acts. 

SACKING    OR   PILLAGE 

1535.  It  shall  always  be  deemed  unla^-ful  to  authorize  the  pillage 
or  sacking  of  towns  taken  by  assault,  and  as  contrary  to  military 
honor  to  encourage  pillage  and  not  to  do  everything  possible 
to  prevent  it. 

1536.  It  shall  not  be  regarded  as  pillage  for  soldiers,  upon  en- 
tering a  hostile  country  following  an  assault  or  a  battle,  to  take, 
without  further  formality,  whatever  they  may  need  for  their  ur- 
gent and  immediate  necessities. 

The  Italian  legislation  declares  pillage  absolutely  unlawful  and  punishes 
the  offender.  Article  275,  of  the  Military  Criminal  Code  of  Italy,  provides 
in  effect  as  follows: 

"Pillage  is  prohibited.  The  person  who  has  ordered  it  or  who,  without 
order,  shall  be  guilty  of  it,  shaU  be  punished  with  death." 

The  Hague  Regulations  contain  the  following  rule: 

Art.  28. — The  -pillage  of  a  toicn  or  place,  even  when  taken  by  assault,  is  pro- 
hibited. 

STRATAGEMS   AND   TRICKS 

1537.  It  shall  be  deemed  permissible  to  combat  the  enemy  by 
means  of  stratagems  and  tricks,  provided,  however,  that  these 
acts  do  not  imply  the  violation  of  an  engagement  assumed  or  of  the 
laws  of  war  and  imply  neither  faithlessness  nor  treachery. 

1538.  It  shall  be  deemed  strictly  prohibited  even  for  the  pur- 
pose of  stratagem,  to  make  wrongful  use: 


MILITARY    OPERATION'S    DURING    WAR    OX    LAND  569 

(a)  Of  a  flag  of  truce; 

(b)  Of  the  distinctive  signs  prescribed  under  the  Geneva  Con- 
vention to  protect  certain  places  and  persons  from  the  laws  of  war. 
(Cf.  rule  1609  and  the  note  under  rule  1610.) 

(c)  Of  the  flag,  insignia,  and  uniform  of  the  enemy; 

(d)  Of  the  distinctive  signs  used  for  places  dedicated  to  peaceful 
objects  in  case  of  bombardment.    (Cf.  rule  1528.) 

Recourse  to  such  means  for  the  purpose  of  misleading  the  enemy 
shall  always  be  regarded  as  contrarj-  to  the  laws  of  war  and  shall 
in  no  case  be  justified  bj'^  the  pretext  of  stratagem. 

1539.  Whoever,  unfairly  and  in  bad  faith,  shall  make  use  of 
one  of  these  means  to  deceive  the  enemy  in  the  course  of  hostilities, 
cannot  invoke  the  protection  of  the  laws  of  war  if  he  should  sub- 
sequently fall  into  his  power. 

The  Italian  armj'  regulations  of  November  26,  1882  and  September  16, 
1896,  contain  the  following  provision: 

Art.  701. — There  is  no  disgrace  in  losing  a  flag  when  it  is  defended  to  the 
last  extremity;  it  is,  on  the  contrary,  a  disgraceful  action  to  save  it  by  hiding 
it,  with  a  few  men  as  protection,  from  the  enemy's  s\vord  and  fire. 


MILITARY   OCCUPATION  * 

1540.  IMilitar}'  occupation  is  a  legitimate  war  operation.  It 
may  be  considered  as  having  taken  place  when  a  belligerent  has 
entered  into  possession  of  a  more  or  less  extensive  portion  of  the 
enemy's  territory  and  has  thus  placed  himself  in  a  position  of 
actually  exercising  sovereign  authority  therein. 

Mihtary  occupation,  properly  speaking,  is  neither  invasion  nor  conquest. 
Invasion  is  a  war  operation  of  a  belligerent  who,  after  having  taken  a  portion 
of  the  enem3''s  territory  by  assault,  takes  advantage  of  the  positions  occupied 
by  him  for  the  necessities  of  war,  by  applying  military  law  to  the  hostile  coun- 
try while  there,  making  requisitions  and  imposing  war  contributions.  Inva- 
sion also  gives  to  the  belHgerent  certain  rights  to  the  territorj'  taken.  No 
doubt  the  belligerent  can  take  advantage  of  the  conquered  position  and  pursue 
such  course  as  may  be  necessary  to  retain  possession  thereof.  Nevertheless, 
so  lonp  ?  struggle  is  proceeding  with  doubtful  success  and  the  belligerent 

has  displayed  no  intention  to  i^ettle  on  the  conquered  territory,  notwithstand- 
ing the  fact  that  the  .sovereign  power  of  the  invaded  territory  has  been  sup- 
planted by  that  of  the  conquering  belhgerent,  it  cannot  be  said  that  military 
occupation,  properly  .speaking,  has  taken  place. 

'  We  reprint  here  all  the  rules  respecting  military  occupation  as  they  are 
formulated  in  our  2d,  3d  and  4th  editions. 


570  INTERNATIONAL   LAW    CODIFIED 

HOW   OCCUPATION   BECOMES   EFFECTIVE 

1641.  Military  occupation  shall  not  be  deemed  effective  so  long 
as  the  struggle  continues  against  the  inhabitants  of  the  invaded 
country,  and  so  long  as  they  shall  not  have  ceased  legitimate  acts 
of  hostility  in  their  efforts  to  defend  it. 

1542.  Military  occupation  shall  be  regarded  as  effected  by  the 
fact  of  taking  possession  of  the  hostile  country  by  an  occupying 
army  corps.  It  does  not  matter  how  the  complete  subjection  of 
the  territory  occupied  was  secured  whether  as  a  result  of  capitula- 
tion or  of  the  inability  of  the  inhabitants  to  continue  fighting, 
thereby  necessitating  their  submission  to  and  recognition  of  hostile 
authority. 

IMMEDIATE    CONSEQUENCES   OF   MILITARY   OCCUPATION 

1543.  An  effected  occupation  involves  the  actual  submission  of 
the  inhabitants  of  the  occupied  country  to  the  authority  of  the  oc- 
cupant, and  the  incidental  obligation  on  the  part  of  said  inhabitants 
to  recognize  that  their  government,  as  constituted  before  it  fell 
into  the  power  of  the  victor,  is  no  longer  qualified  to  exercise 
public  functions. 

1544.  The  obligation  imposed  on  the  inhabitants  of  the  occupied 
country  of  considering  their  relations  with  the  defeated  sovereign 
as  temporarily  suspended,  and  of  recognizing  the  victor's  authority 
established  in  fact  over  all  the  territories  militarily  occupied,  must 
be  considered  as  effective,  independently  of  the  victor's  intention 
to  retain  possession  for  a  longer  or  shorter  time  of  the  occupied 
territory. 

1545.  The  occupying  military  authority  shall  take  all  neces- 
sary steps  to  preserve  order  and  exercise  sovereign  power  in  the 
occupied  territory,  so  as  to  insure  the  respect  of  persons  and  prop- 
erty as  well  as  the  regular  exercise  and  protection  of  all  their 
legal  rights. 

1546.  Military  authorities  shall  have  the  right  to  avail  them- 
selves of  all  possible  advantages  of  the  occupation,  but  shall  be 
bound  to  exercise  the  rights  and  duties  of  sovereignty  within  rea- 
sonable limits,  taking  into  account  the  necessities  of  war  and  the 
very  nature  of  military  occupation. 


MILITARY    OPERATIONS    DURING    WAR    ON   LAND  571 

In  principle,  military  occupation  deprives  the  enemy  of  the  possession  of 
the  occupied  territory  and  substitutes  therein  the  victor's  exercise  of  the  rights 
of  sovereignty.  Yet,  as  this  fact  is  subject  to  the  eventualities  of  war  and 
can  only  become  final  through  a  treaty  of  peace  and  the  cession  of  the  territory 
in  question,  the  occupying  sovereign  must  exercise  his  powers  only  within 
the  limits  of  actual  necessity.  Therefore,  he  shall  have  the  right  to  do  what 
is  at  the  moment  essential  to  maintain  himself  in  possession  of  the  occupied 
territory,  to  prevent  and  punish  any  attempt  to  hinder  his  government,  to 
compel  the  inhabitants  to  obey  him  and  to  insure  public  order.  But  he  would 
overstep  the  just  limits  imposed  by  the  nature  of  his  authority  if  he  should 
assume  to  act  as  if  he  possessed  absolute  sovereignty  over  the  occupied  terri- 
tory, e.  g.,  if  he  should  treat  the  inhabitants  as  his  subjects,  and  consider  oc- 
cupation during  war  as  a  definitive  conquest. 


RIGHTS   OF   THE    OCCUPANT   RESPECTING   PERSONS 

1547.  The  occupant  shall  have  the  right  to  force  all  the  inhabi- 
tants to  obey  him,  to  compel  them  to  recognize  the  status  quo, 
and  to  consider  their  relations  of  loyalty  and  subjection  to  the  de- 
feated sovereign  as  temporarily  suspended;  but  he  shall  not  have 
the  right  to  compel  them  to  adopt  an  attitude  of  enmity  toward 
their  former  sovereign,  nor  shall  he  construe  any  sentiment  of 
patriotism  on  their  part  as  an  offense. 

Cf.  the  last  paragraph  of  article  23  of  The  Hague  Regulations  given  under 
rule  1485. 

1548.  Any  invasion  of  individual  liberty,  any  act  of  servility 
imposed  by  force  on  the  inhabitants  of  the  occupied  country,  any 
punishment  of  patriotic  sentiment  which  does  not  manifest  itself 
in  the  form  of  hostile  acts  or  demonstrations,  shall  be  deemed 
contrary  to  the  laws  of  war. 

1549.  It  would  be  unfair  and  arbitrary  to  require  the  oath  of 
allegiance  of  the  judges  and  civil  officials  of  the  occupied  country. 
The  occupying  authority  may  divest  public  officials  of  their  offices 
and  require  of  those  who,  owing  to  the  necessities  of  the  situation, 
must  continue  in  the  exercise  of  their  duties,  their  word  of  honor 
that  they  will  obey  the  government  of  occupation  so  long  as  the 
victor  shall  remain  in  control  of  the  occupied  territory. 

To  impose  the  oath  of  alhigiance,  properly  speaking,  upon  persons  who  are 
compelled  to  submit  to  the  necessities  of  war,  while  considering  as  still  sub- 
sisting the  bonds  which  unite  them  to  their  fatherland,  would  not  only  be  a 
fallacious  guaranty,  but  an  act  absolutely  arbitrary  and  unfair  on  the  part 
of  the  victor,  who  would  thus  impose  on  officials  the  violation  of  their  political 
loyalty. 


572  INTERNATIONAL    LAW    CODIFIED 

1560.  It  shall  be  considered  as  absolutely  contrary  to  the  laws 
of  war  and  as  a  most  grievous  offense  to  compel  the  inhabitants  of 
the  occupied  territory  to  perform  military  service  or  commit  hostile 
acts  against  their  country. 

1551.  The  occupant  shall  have  no  right  to  forbid  the  inhabi- 
tants of  the  occupied  country  to  leave  it  at  will;  neither  shall  he 
be  permitted  to  consider  the  entire  population  as  prisoners  of  war. 


CIVIL   OFFICIALS    AND   EMPLOYES 

1552.  Civil  officials  and  employes  of  all  kinds  consenting  to 
continue  in  the  performance  of  their  respective  duties  must  enjoy 
the  protection  of  the  occupant.  They  shall  always  be  subject  to 
dismissal  and  shall  have  the  right  to  resign  their  respective  offices. 
They  shall  not  be  subject  to  disciplinary  punishment  except  when 
they  fail  to  perform  obligations  freely  assumed,  and  shall  only  be 
liable  to  prosecution  when  they  violate  their  duties. 

Art.  45  of  the  Manual  of  the  Institute  of  International  Law,  Les  lots  de 
guerre  sur  terre  adopted  at  Oxford,  1880. — Complete  freedom  of  judgment  and 
action  should  in  general  be  allowed  as  to  keeping  or  suspending  civil  oflScials 
and  employes  during  occupation.  All  those  who  fulfill  political  functions 
cannot,  to  be  sure,  be  maintained  in  the  exercise  of  their  duties.  As  to  all 
others,  their  retention  or  dismissal  must  naturally  depend  on  the  influence 
they  may  exercise,  in  the  performance  of  their  duties,  on  the  necessities  of  war. 
With  respect  to  railroad  employes,  for  example,  when  the  importance  of  rail- 
road service,  from  a  military  standpoint,  is  realized,  dismissal  of  the  national 
personnel,  who  might  cause  considerable  prejudice  to  the  interests  of  the  oc- 
cupying belligerent,  is  justifiable.  It  must  be  deemed  essential,  however, 
that  the  railroad  service  be  not  disorganized,  in  order  not  to  impair  the  in- 
terests of  commerce  and  free  circulation.  It  is  necessary,  moreover,  to  respect 
the  legal  rights  of  the  dismissed  employes  against  the  State,  according  to  the 
laws,  and  against  the  Railroad  Company,  according  to  contract,  and  to  see 
that  they  are  indemnified  at  the  conclusion  of  peace  for  the  losses  sustained 
by  reason  of  their  suspension. 


MEASURES   OF   SAFETY 

1553.  The  military  occupant  of  a  territory  has  not  only  the  right 
to  require  of  the  inhabitants  complete  submission  to  his  authority 
and  the  right  to  punish  any  violation  of  that  obUgation;  he  has 
likewise  the  right  to  prevent  any  attempt  at  such  violation  by 
providing  very  severe  punishments  against  any  person  making 


iMILITARY    OPERATIONS    DURING    WAR    ON    LAND  573 

or  attempting  to  make  an  attack  upon  the  established  government 
and  the  safety  of  the  army  of  occupation. 

It  should,  however,  be  considered  contrary  to  the  principles  of 
international  justice  to  order  summary  executions  or  sentences  of 
death  without  regular  judicial  procedure,  for  the  purpose  of  in- 
spiring terror  in  the  population. 

1554.  The  inhabitants  of  the  country  militarily  occupied  must 
recognize  the  authority  of  the  government  of  occupation  and  re- 
frain from  any  act  likely,  either  directly  or  indirectly,  to  jeopardize 
the  safety  of  the  army  of  occupation  or  to  impair  its  actual  inter- 
ests. 

CRIMINAL   LAWS   AND    CONVICTIONS 

1555.  The  military  government  shall  have  the  right  to  apply 
martial  law  in  the  occupied  territory  and  also  order  such  rigorous 
measures  as  may  be  required  by  circumstances.  It  may  proclaim 
martial  law  and  enforce  any  measure  necessary  to  maintain  its 
authority  and  prevent  an  insurrection.  It  must,  however,  exer- 
cise its  authority  without  substantially  violating  the  superior 
principles  of  the  penal  law  of  war,  so  far  as  regards  responsibility, 
procedure,  and  trial. 

The  penal  law  of  war  likewise  has  its  principles.  It  should  be  considered 
contrary  to  justice  to  inflict  the  death  penaUy  for  any  offense  whatsoever 
committed  during  mihtary  occupation,  or  to  substitute  collective  responsi- 
bility for  individual  responsibility.  This  is  what  would  happen  if,  for  instance, 
commimities  were  declared  responsible  for  criminal  offenses  committed  in 
their  jurisdiction,  or  if  the  execution  of  a  sentence  should  be  ordered  against 
any  person  suspected  of  an  offense,  without  any  semblance  of  trial. 

1556.  'i'he  various  degrees  of  j)unishment  inflicted  may  some- 
times be  necessarily  severe  owing  to  the  degree  of  difficulty  en- 
countered by  the  sovereign  occupant  in  retaining  possession  of  the 
territory. 

One  can  never,  however,  justify  arbitrary  punishments  inflic^ted 
by  the  military  authority  without  previous  promulgation  of  an 
official  decree  or  ordinance  providing  such  punishment  for  the  for- 
bidden act. 


574  INTERNATIONAL   LAW    CODIFIED 

PRIVILEGES   OF  THE   OCCUPANT   IN   THE  EXERCISE  OF   LEGISLATIVE 

POWER 

1557.  The  occupant  is  not  permitted  arbitrarily  to  repeal  the 
civil  legislation  of  the  conquered  country,  or  to  alter  the  public 
law  in  force.  To  exercise  such  power  would  be  a  perversion  of  his 
rightful  authority  and  would  be  regarded  as  an  unwarranted  abuse 
of  his  functions,  unless  it  can  be  clearly  justified  by  the  necessities 
of  war. 

1558.  He  must  not,  during  the  military  occupation,  alter  the 
prevailing  laws  relating  to  judicial  organization,  jurisdiction  and 
competence,  save  with  respect  to  cases  which  must  be  submitted 
to  special  courts  on  accoimt  of  their  nature  or  military  necessity, 
and  cases  within  the  jurisdiction  of  courts-martial.  He  must, 
with  these  exceptions,  maintain  the  status  quo,  allowing  ordinary 
courts  to  continue  their  regular  functions. 

1559.  The  occupant  must  provide  for  the  regular  administration 
of  civil  justice,  and  protect  the  status  of  persons  and  family  rela- 
tions, without  modifying  them  in  any  way  by  general  laws. 

PUBLIC    ADMINISTRATION 

1560.  It  is  the  duty  of  the  government  of  occupation  to  provide 
for  the  public  service  and  administration.  For  this  purpose  it 
may  request  all  employes  whose  functions  have  no  political  char- 
acter, to  continue  in  the  performance  of  their  duties.  It  has  no 
authority  to  compel  them  individually,  but  may  consider  as  an 
act  of  hostility  the  collective  refusal  of  all  the  employes  of  the 
public  administration  or  of  a  branch  of  the  public  service  to  per- 
form their  duties, 

1561.  During  mihtary  occupation,  the  exercise  of  any  function 
of  sovereignty  must  be  deemed  regular  and  lawful,  even  as  to  con- 
sequences affecting  private  relations.  Contracts  signed  by  the 
government  constituted  by  the  army  of  occupation  shall  be  vaUd, 
as  well  as  transfers  of  property  regularly  made  in  conformity  with 
the  laws  in  force;  and  private  persons  shall  be  entitled  to  avail 
themselves  of  the  rights  acquired  through  judgments  pronounced 
by  courts  of  law  during  the  occupation,  provided  such  judgments 
can  be  regarded  as  final  and  as  having  acquired  the  authority  of 


MILITARY    OPERATIONS   DURING    WAR   ON    LAND  575 

res  judicata.  The  same  shall  apply  to  any  other  right  acquii-ed  and 
perfected  under  the  laws  promulgated  and  in  force  during  the  oc- 
cupation. 

RIGHTS   OF  THE   OCCUPANT   AS   TO    PROPERTY 

1562.  The  military  occupant  shall  have  the  unconditional  right 
to  take  possession  of,  and  appropriate  to  his  own  use,  all  property 
belonging  to  the  State  which  he  finds  in  the  occupied  territory. 
He  shall  have  not  only  the  right  to  take  possession  of  arms,  depots 
of  munitions  and  supplies  for  the  use  of  troops,  and  everything 
useful  in  warfare,  but  also  of  transportation  and  railroad  equip- 
ment (locomotives,  railroad  material,  ships,  etc.),  telegraph  sys- 
tems, building  materials,  etc.,  belonging  to  the  enemy  State. 

He  shall  also  have  the  right  to  take  possession  of  the  cash  and 
of  the  hquid  assets  which  are  strictly  the  property  of  the  State, 
whether  this  be  in  the  pubhc  treasury  or  consist  of  claims  of  the 
State  against  private  persons,  provided  they  are  claims  due  or 
becoming  due  during  the  period  of  occupation. 

1563.  The  belligerent  shall  have  no  right  to  take  possession  of 
public  property  devoted  to  peaceful  objects,  e.  g.,  religion,  charity 
or  education. 

Such  exempted  property  shall  include  the  establishments  and 
property  belonging  to  churches,  hospitals,  and  charitable  institu- 
tions, those  devoted  to  education,  such  as  universities,  academies, 
observatories,  museums  of  fine  arts  and  all  endowments  of  a 
scientific  or  charitable  character. 

1564.  The  belhgerent  shall  be  permitted  to  enjoy  all  the  ad- 
vantages arising  out  of  the  temporary  possession  of  all  the  prop- 
erty belonging  to  the  public  domain,  but  shall  have  no  right  to 
alienate  such  property,  except  when  the  alienation  of  a  given 
portion  thereof  shall  be  required  by  the  urgent  necessities  of 
war. 

1565.  The  occupant  must  always  deem  private  property  in- 
violable and  not  confiscate  it  under  any  pretext,  and  acknowledge 
the  same  inviolability  respecting  nmnicipal  property.  He  shall 
have  the  right  to  subject  to  forced  expropriation  only  such  prop- 
erty of  private  persons  which  is  likely  to  be  required  in  the  opera- 
tions of  war,  subject,  however,  to  the  payment  of  a  just  indemnity, 


570  INTERNATIONAL    LAW   CODIFIED 

or  to  the  reservation  of  such  payment  as  may  be  provided  by  the 
eventual  treaty  of  peace. 

He  shall  he  able  to  levy  contributions  of  war  upon  towns  and 
communes  in  conformity  with  the  rules  which  govern  such  levies. 

See,  as  to  requisitions,  The  Hague  Convention  at  the  end  of  this  Title. 
RAILROADS  AND  TELEGRAPH  LINES  BELONGING  TO  PRIVATE  PERSONS 

1666.  During  the  military  occupation,  it  shall  not  only  be  per- 
missible to  the  occupying  belligerent  to  make  use  of  the  railroad 
and  telegraph  material  belonging  to  companies  or  to  private 
persons,  that  may  be  required  in  the  prosecution  of  the  war,  but 
he  shall  also  be  entitled  to  regulate  with  full  freedom  the  manage- 
ment of  such  railroads  and  telegraph  lines,  reserving  the  rights  of 
the  companies  or  private  persons  in  order  that  such  rights  may  be 
adjusted  at  the  conclusion  of  peace.  He  shall  have  no  right,  how- 
ever, to  take  possession  of  the  cash  which  may  happen  to  be  in  the 
treasuries  of  companies.  He  shall  be  bound  to  organize  the  man- 
agement and  operation  thereof  in  such  manner  as  not  unnecessa- 
rily to  impair  the  rights  of  the  companies  and  employes,  and  effect- 
ively to  protect  the  interests  of  peaceful  commerce. 

RIGHT  OF  THE  OCCUPANT  AS  TO  TAXES 

1567.  During  the  military  occupation,  the  government  of  the 
occupant  shall  have  the  right  to  collect  the  taxes  already  estab- 
lished by  law  in  the  manner  and  conformably  to  the  usages  in 
force  in  the  occupied  country.  Power  to  amend  the  fiscal  legis- 
lation or  the  system  of  levying  taxes,  and  the  privilege  of  intro- 
ducing new  taxes  cannot  wholly  be  denied  to  the  occupant;  but  it 
is  advisable  that  he  should  not  undertake  any  legislative  changes 
without  necessity  and  that  he  should  always  exercise  his  sovereign 
powers  with  great  moderation. 

A  modification  in  the  system  of  levying  taxes  during  military  occupation 
might  consist  in  subjecting  towns  to  the  payment  of  a  single  tax,  leaving  it 
to  the  municipal  administration  to  apportion  it  out  among  the  taxpayers. 
The  preferable  policy,  however,  is  to  make  no  changes  either  in  the  basis  or 
form  of  the  tax  system  unless  such  modification  is  urgently  required  by  the 
necessities  of  war. 

[See  U.  S.  V.  Rice,  4  Wheaton,  246;  Mazatlan  and  Bluefield's  cases,  Moore's 


MILITABY    OPERATIONS   DURING    WAR    ON   LAND  577 

Digest,  I,  49  et  seq.;  Message  of  the  President,  For.  Rel.  1900,  xxiv;  MacLeod 
V.  U.  S.  (1913),  229  U.  S.  416,  429— Transl.] 


PUBLIC    SERVICES 

1568.  The  military  occupant  must  devote  the  moneys  col- 
lected by  means  of  taxes  to  their  natural  and  proper  purposes, 
namely,  that  of  providing  for  the  needs  of  the  occupied  country 
and  especially  for  public  services,  education,  and  public  works. 

The  states  represented  at  The  Hague  have  settled  in  common  accord  the 
rights  of  the  mihtary  authority  over  hostile  territory.  See  Section  III  of 
the  Regulations  annexed  to  the  fourth  Convention.  They  have  laid  down  the 
following  rules,  which  have  obligatory  legal  force  among  these  states. 


RIGHT  OF  THE  BELLIGERENT  OVER  THE  TERRITORY  OF  THE  HOSTILE 

STATE 

Art.  42. — Territory  is  considered  occupied  when  it  is  actually  placed  under 
the  authority  of  the  hostile  army. 

The  occupation  extends  only  to  the  territory  where  such  authority  has  been  es- 
tablished and  can  be  exercised. 

AuT.  43. — The  authority  of  the  legitimate  power  hairing  in  fact  passed  into 
the  hands  of  the  occupant,  the  latter  shall  take  all  the  measures  in  his  power  to 
restore,  and  ensure,  as  far  as  possible,  public  order  and  safety,  while  respecting, 
unless  absolutely  prevented,  the  laws  in  force  in  the  country. 

Art.  44. — A  belligerent  is  forbidden  to  force  the  inhabitards  of  territory  oc- 
cupied by  it  to  furnish  information  about  the  army  of  the  other  belligerent,  or 
about  its  means  of  defense. 

Art.  45. — It  is  forbidden  to  compel  the  inhabitants  of  occupied  territory  to 
swear  allegiance  to  the  hostile  power. 

Art.  46. — Family  honor  and  rights,  the  lires  of  persons,  and  private  property, 
as  well  as  religious  connctions  ami  practice,  must  be  respected. 

Art.  47. — Pillage  is  formally  forbidden. 

Art.  48. — //,  in  the  territory  occujried,  the  occupant  collects  the  taxes,  dues, 
and  tolls  imposed  for  the  benefit  of  the  state,  he  shall  do  so,  as  far  as  is  possible,  in 
accordance  with  the  rules  of  assessment  and  incidence  in  force,  and  shall  in  con- 
sequence be  bound  to  defray  the  expenses  of  the  administration  of  the  occupied 
territory  to  the  same  extent  as  the  legitimate  (lovernment  was  so  bound. 

Money  contributions,  requisitions,  co/Uributions  in  kind 

Art.  49. — //,  in  addition  to  the  taxes  mentioned  in  the  above  article,  the  oc- 
cupant levies  other  money  contributions  in  the  occupied  territory,  this  shall  onh/ 
be  for  the  needs  of  the  army  or  of  the  administration  of  the  territory  in  question. 

Art.  .'50. — No  general  penally,  pecuniary  or  otlierwise,  shall  be  inflicted  upon 
the  population  on  accourd  of  the  acts  of  individuals  for  which  they  cannot  be  re- 
garded as  jointly  and  severally  responsible. 


578  INTERNATIONAL  LAW   CODIFIED 

Art.  51. — No  conlrihution  shall  be  collected  except  under  a  written  order,  and 
on  the  responsibility  of  a  Commander-in-Chief.  The  collection  of  the  said  con- 
tribution shall  only  be  effected  as  far  as  possible  in  accordance  with  the  rules  of 
assessment  and  incidence  of  the  taxes  in  force.  For  every  contribution  a  receipt 
shall  be  given  to  the  contributors. 

Art.  52. — Requisitions  in  kind  and  services  shall  not  be  demanded  from 
municipalities  or  inhabitants  except  for  the  needs  of  the  army  of  occupation. 
They  shall  be  in  proportion  to  the  resources  of  the  country,  and  of  such  a  nature 
as  not  to  involve  the  inhabitants  in  the  obligation  of  taking  part  in  military  opera- 
tions against  their  own  country.  Such  requisitions  and  services  shall  only  be  de- 
inanded  on  the  authority  of  the  commander  in  the  locality  occupied.  Contributions 
in  kind  shall  as  far  as  possible  be  paid  for  in  cash;  if  not,  a  receipt  shall  be  given 
and  the  payment  of  the  amount  due  shall  be  made  as  soon  as  possible. 

Rights  over  the  property  of  the  hostile  state  and  of  municipalities 

Art.  53. — An  army  of  occupation  can  only  take  possession  of  cash,  funds, 
and  realizable  securities  which  are  strictly  the  property  of  the  state,  depots  of 
arms,  means  of  transport,  stores  and  supplies,  and,  generally,  all  movable  prop- 
erty belonging  to  the  state  which  may  be  used  for  military  operations. 

All  appliances,  lohether  on  land,  at  sea,  or  in  the  air,  adapted  for  the  transmis- 
sion of  news,  or  for  the  transport  of  persons  or  things,  exclusive  of  cases  governed 
by  naval  law,  depots  of  arms,  and,  generally,  all  kinds  of  ammunition  of  war, 
may  be  seized,  even  if  they  belong  to  private  individuals,  but  must  be  restored  and 
compensation  fixed  when  peace  is  made. 

Art.  54. — Submarine  cables  conyiecting  an  occupied  territory  with  a  neutral 
territory  shall  not  be  seized  or  destroyed  except  in  the  case  of  absolute  necessity. 
They  must  likeivise  be  restored  and  compensation  fixed  when  peace  is  made. 

Art.  55. — The  occupying  state  shall  be  regarded  only  as  administrator  and 
usufructuary  of  public  buildings,  real  estate,  forests,  and  agricultural  estates 
belonging  to  the  hostile  state,  and  situated  in  the  occupied  country.  It  must  safe- 
guard the  capital  of  these  properties,  and  administer  them  in  accordance  with 
the  rules  of  usufruct. 

Art.  56. — The  property  of  municipalities,  that  of  institutions  dedicated  to 
religion,  charity  and  education,  the  arts  and  sciences,  even  when  state  property, 
shall  be  treated  as  private  property. 

All  seizure  of,  destruction  or  v/ilful  damage  done  to  institutions  of  this  charac- 
ter, historic  monuments,  works  of  art  and  science,  is  forbidden,  and  should  be 
made  the  subject  of  legal  proceedings. 


TITLE  X 

PRISONERS  OF  WAR.     THE  WOUNDED  AND  SICK 

1569.  Every  individual  is  considered  a  prisoner  of  war  who, 
taking  part  in  the  war  either  as  a  combatant  or  non-combatant, 
falls  into  the  hands  of  the  enemy  in  any  manner  whatever  and  is 
captured. 

Persons  attached  to  the  service  of  the  army  (sutlers,  contractors, 
etc.)  or  following  it  as  journalists,  reporters,  etc.,  who  fall  into  the 
hands  of  the  enemy  must,  if  the  latter  deems  it  expedient  to  de- 
tain them  provisionally,  be  considered  as  prisoners  of  war. 

1570.  Any  individual  of  the  hostile  army  who  lays  down  his 
arms  and  surrenders  has  the  right  to  be  safe  from  any  attack  upon 
his  person  and  cannot  either  be  wounded  or  killed ;  he  is  simply  to 
be  declared  a  prisoner  of  war. 

1571.  Any  one  who  is  declared  a  prisoner  of  war  must,  as  such, 
be  regarded  as  under  the  immediate  control  of  the  belligerent 
sovereign  and  not  under  that  of  the  person  who  made  him  prisoner 
and  who  cannot,  without  violating  military  discipline,  have  any 
right  to  set  him  free  and  much  less  to  exact  from  him  the  payment 
of  any  sum  of  money  to  buy  his  freedom. 


DUTIES   OF   BELLIGERENTS   TOWARDS    PRISONERS  ^ 

1572.  Belligerents  must  treat  prisoners  of  war  with  humanity 

'  We  reprint  the  rules  that  we  proposed  in  the  2d,  3rd  and  4th  editions 
of  the  present  work.  They  must  l)e  regarded  as  being  founded  upon  the 
"common"  law  established  by  civilized  states,  as  sanctioned  in  the  instruc- 
'tions  given  by  several  states  to  their  armies  and  navies,  in  conformity  with 
tin;  usages  accepted  in  the  wars  of  our  time,  in  tlu;  Mamial  of  the  Institute  of 
/ntenuitional  law,  arts.  Gl  et  scq.,  session  of  Oxford  (18S0),  and  in  the  numerous 
works  which  have  treated  the  question.  Of  course,  these  rules  could  in  reality 
only  have  compulsory  legal  force  betwc^en  states  through  their  reciprocal 
agnicment.  Such  an  agrec^ment  was  reached  by  the  states  represented  at 
the  Hague  Conference  which,  among  other  matters,  adopted  rules  concerning 
prisoners  of  war.    We  present  hereafter  I  lieir  agreement  on  this  subject. 

579 


580  INTERNATIONAL  LAW   CODIFIED 

and  show  them  the  legaid  which  is  due  them  by  reason  of  their 
rank  and  civil  condition.  They  must,  besides,  see  that  miUtary 
commanders  do  not  take  any  unfair  advantage  of  their  powers 
and  punish  any  act  of  their  inferiors  violative  of  the  respect  due 
to  prisoners. 

1573.  It  nmst  always  be  considered  disgraceful  and  treacherous 
to  deprive  prisonei's  of  their  personal  belongings  (jewels,  watches 
and  the  like),  even  if  such  objects  are  of  small  value. 

Nevertheless,  the  commander  always  has  the  right  to  order 
that  all  personal  belongings  of  prisoners  be  deposited  by  them 
to  be  sequestered  during  their  captivity.  It  is  only  permissible 
to  appropriate  arms,  horses  and  other  objects  pertaining  to 
warfare. 

1574.  The  capturing  government  shall  defray  the  expenses  of 
caring  for  prisoners  of  war,  giving  them  lodging  and  rations  ac- 
cording to  their  station  and  ranks,  taking  as  a  basis  the  salary 
of  its  own  officers  and  soldiers,  subject  to  the  subsequent  settle- 
ment in  the  treaty  of  peace  of  the  respective  expenses  of  main- 
taining prisoners. 

1575.  Lack  of  resources  for  the  maintenance  of  prisoners  of  war 
cannot  justify  the  conduct  of  a  government  which,  in  violation  of 
the  rules  of  "common"  law,  considers  itself  authorized  to  refuse 
to  give  quarter  to  soldiers  who  would  surrender  or  to  order  the 
massacre  of  those  whom  it  could  not  support  as  prisoners. 

1576.  The  belligerent  shall  always  be  able  to  safeguard  his 
rights  and  interests,  either  by  making  it  impossible  for  prisoners 
to  participate  in  the  war  operations,  or  by  securing  their  pledged 
word  not  to  take  any  further  active  part  in  the  war,  and  then  by 
punishing  those  who,  having  been  sec  free,  have  been  recaptured 
with  arms  in  violation  of  their  parole. 

There  is  no  doubt  that  the  hostile  soldier  who  surrenders  at  discretion  is 
entitled  to  his  life  and  that  the  belligerent  cannot  violate  this  right  of  man 
without  committing  a  veritable  crime.  We  absolutely  deny,  therefore,  for 
any  cause,  however  peremptory  it  may  be,  the  right  of  a  belligerent  to  de- 
prive a  soldier  who  has  laid  down  his  arms  of  his  life. 

We  recognize  only  his  right  to  punish  a  prisoner  set  free  on  parole  not 
to  take  any  further  part  in  the  war,  whom  he  has  recaptured  bearing  arms. 

The  military  criminal  code  of  Italy  punishes  with  death  a  hostile  oflBcer 
who,  set  free  on  parole,  has  been  recaptured  bearing  arms  (art.  292). 

The  French  code  of  military  justice  (art.  204,  §  2),  contains  a  similar  provi- 
sion. 


PRISONERS    OK    WAR  581 

RIGHTS   RESPECTING    PRISONERS   WAR 

1577.  The  commanding  officer  of  an  army,  who  has  prisoners  of 
war  in  his  power,  may  order  that  they  be  disarmed,  making  no 
exception  for  officers  of  all  ranks,  to  whom,  however,  it  is  proper 
to  restore  their  swords  provided  they  have  surrendered  them 
in  token  of  submission,  and  on  condition  of  their  remaining  dis- 
armed during  their  captivity. 

1578.  The  government  in  whose  power  prisoners  happen  to  be 
may  employ  them  in  useful  labor,  taking  into  account  their  re- 
spective rank  and  social  status.  In  no  case  is  it  permissible  to 
employ  them  in  building  fortresses  or  any  work  of  defense  even  in 
a  place  far  removed  from  the  seat  of  war,  whenever  such  works 
might  be  used  in  the  operations  of  the  war. 

1579.  A  belligerent  may,  with  respect  to  prisoners  of  war  he  does 
not  wish  to  set  free,  take  the  necessary  steps  towards  ensuring 
their  custody  and  preventing  their  escape.  He  may  intern  them 
and  confine  under  detention  those  he  deems  most  necessary. 

1580.  Prisoners  of  war  may  be  subjected,  in  principle,  to  the 
military  laws  and  regulations  in  force  in  the  country  where  they 
are  detained;  any  act  of  insubordination  or  any  attempt  at  revolt 
or  escape  may  be  punished  under  such  laws  and  regulations. 

1581.  A  prisoner  attempting  to  escape  is  subject  to  disciplinary 
penalties.  Recourse  to  armed  force,  as  in  warfare,  is  likewise 
permissible  to  arrest  and  capture  him  while  in  flight;  but  his  escape 
cannot  be  regarded  as  a  crime  so  as  to  subject  to  the  criminal  law 
a  prisoner  who  has  succeeded  in  escaping  or  has  attempted  to  do  so, 
should  he  again  fall  into  the  hands  of  the  enemy  or  be  captured  in 
the  attempt  to  escape. 

1582.  Plotting  on  the  part  of  prisoners  to  recover  their  liberty 
and  to  employ  the  means  likely  to  realize  that  end  is  liable  to  pun- 
ishment as  a  military  offense.  Any  act  of  resistance  to  the  author- 
ities entrusted  with  their  custody  shall  likewise  be  considered  as 
an  act  of  rebellion  and  punished  more  or  less  severely,  according 
to  circumstances,  and  in  serious  cases  even  with  the  death  penalty. 


582  INTERNATIONAL   LAW    CODIFIED 

CONVENTIONS  RESPECTING   THE   EXCHANGE   AND   RELEASE  OF 

PRISONERS 

1583.  Exchange  of  prisoners  between  belligerents  shall  be 
effected  as  they  may  deem  most  convenient.  If  one  of  them  de- 
clares his  wish  to  release  them  on  parole,  he  shall  have  no  right  to 
demand  the  same  treatment,  or  the  acceptance  of  an  offer  of  ex- 
change, from  his  adversary. 

1584.  When  the  exchange  of  prisoners  or  their  release  on  parole, 
or  the  conditions  respecting  their  maintenance  have  been  the  sub- 
ject of  a  special  agreement  between  the  belligerents,  it  is  neces- 
sary in  determining  the  scope  and  execution  of  the  convention  to 
refer  to  the  rules  respecting  conventions  and  agreements  concluded 
in  time  of  war. 

1585.  If  a  belligerent  has  accepted  the  offer  of  the  enemy  as  to 
the  exchange  of  prisoners  and  the  conditions  of  the  exchange  have 
not  been  fixed,  it  ought  to  take  place  man  for  man,  rank  for  rank, 
wounded  for  wounded,  and  under  the  same  conditions  on  both 
sides. 

1586.  A  belligerent  shall  have  the  right  to  release  prisoners  who 
are  in  his  power,  by  imposing  on  the  enemy  the  condition  of.  ex- 
changing a  certain  quantity  of  ammunition,  stores  and  material 
necessary  for  the  army;  but  it  shall  never  be  permissible  to  enter 
into  an  agreement  with  the  prisoner  himself  for  the  purchase  of 
his  liberty. 

PAROLE    OF   PRISONERS 

1587.  A  belligerent  cannot  compel  prisoners  to  give  their  word 
to  comply  with  all  the  conditions  which  he  imposes  as  the  price 
of  freedom. 

A  prisoner  who  has  given  a  promise,  contrary  to  mihtary  honor, 
which  was  imposed  on  him  as  a  condition  of  his  freedom,  shall 
not  be  bound  to  keep  his  word.  Nor  shall  the  prisoner  be  con- 
strained to  keep  his  promise  when,  unable  by  the  laws  of  his  coun- 
try to  engage  on  honor  to  comply  with  the  conditions  which  were 
submitted  to  him  for  his  freedom  and  having  so  declared,  the  bellig- 
erent shall,  notwithstanding,  have  imposed  these  conditions  on  him 
and  obliged  him  to  give  his  word  of  honor. 


PRISONERS   OF   WAR  583 

1688.  The  word  of  hoaor  given  on  the  battlefield  while  the 
battle  is  in  progress,  has  no  value.  Neither  is  the  word  of  honor 
vahd,  given  when  the  fight  is  over,  by  a  military  commander  in 
the  name  of  a  whole  army  corps,  which  would  on  this  simple  dec- 
laration be  set  at  liberty. 

1589.  When  prisoners  have  been  released  on  parole,  the  govern- 
ment to  which  they  belong  must  respect  their  parole  and  not  im- 
pose on  them  any  service  conflicting  with  the  obligation  assumed. 

jVIoreover,  soldiers  are  bound  to  conform  to  the  laws  of  their 
country  when  they  assume  obligations  and  give  their  word  of  honor 
to  compl}^  therewith. 

1590.  We  must  particularly  condemn  as  dishonest  and  dis- 
honorable the  act  of  a  government  in  compelling  prisoners  to  serve 
against  the  enemy  who  has  released  them  or  against  his  allies, 
during  the  progress  of  the  war  in  which  the  obhgation  of  honor 
was  assumed. 

We  cannot  include  in  this  category  the  act  of  a  government 
which  imposes  on  prisoners  who  have  been  given  their  freedom 
the  obligation  to  perform  active  public  duties  at  home  or  in  the 
administrative  services  of  the  army. 

The  states  represented  at  The  Hague  have  established  in  common  accord 
the  following  conventional  rules  as  regards  the  treatment  of  prisoners  of  war. 
They  are  part  of  the  4th  convention  of  the  General  Act  of  October  18,  1907, 
which  was  actually  signed  on  June  30,  1908.  They  read  as  follows  {Annex 
to  the  Convention) : 

Art.  4. — Prisoners  of  war  are  in  the  power  of  the  hostile  Government,  but  not 
of  the  individuals  or  corps  who  capture  them. 

They  must  be  humanely  treated. 

All  their  personal  belongings,  except  arms,  horses  and  military  papers,  remain 
their  property. 

Art.  5. — Prisoners  of  war  may  be  interned  in  a  toivn,  fortress,  camp  or  other 
place,  and  bound  not  to  go  beyond  certain  fixed  limits;  but  they  cannot  be  confined 
except  as  an  indispensable  measure  of  safety  and  only  while  the  circumstances 
which  necessitate  the  measure  continue  to  exist. 

Art.  6. — The  .'itate  may  utilize  the  labor  of  prisoners  of  war  according  to  their 
rank  and  aptitude,  officers  excepted.  The  tasks  shall  not  be  excessive  and  shall 
have  no  connection  vrith  the  operations  of  the  war. 

Prisoners  may  be  authorized  to  work  for  the  public  service,  for  private  persons 
or  on  their  own  accourd. 

Work  done  for  the  State  is  paid  at  the  rates  in  force  for  work  of  a  similar  kind 
done  by  soldiers  of  the  national  army,  or,  if  there  are  none  in  force,  at  a  rate  ac- 
cording to  the  work  executed. 

When  the  work  is  for  other  branches  of  the  public  service  or  for  private  persons 
the  conditions  are  ■'settled  in  agreement  ivith  the  military  authorities. 

The  wages  of  the  prisoners  shall  go  tmrards  improving  their  position,  and  the 


584  INTERNATIONAL   LAW    CODIFIED 

balance  shall  be  paid  them  on  their  release,  after  deducting  the  cost  of  their  main- 
tenance. 

AuT.  7. — The  Government  into  whose  hands  prisoners  of  war  have  fallen  is 
charged  with  their  maintenance. 

In  the  absence  of  a  special  agreement  between  the  belligerents,  prisoners  of  war 
shall  be  treated  as  regards  board,  lodging  ami  clothing  on  the  satne  footing  as  the 
troops  of  the  Government  who  captured  them. 

Art.  8. — Prisoners  of  war  shall  be  subject  to  the  laivs,  regulations,  and  orders 
in  force  in  the  army  of  the  slate  in  whose  power  they  are.  Any  act  of  insubordina- 
tion justifies  the  adoption  towards  them  of  such  measures  of  severity  as  may  be 
considered  necessary. 

Escaped  prisoners  who  are  retaken  before  being  able  to  rejoin  their  own  army 
or  before  leaving  the  territory/  occupied  by  the  army  which  captured  them  are  liable 
to  disciplinary  punishment. 

Prisoners  ivho,  after  succeeding  in  escaping,  are  again  taken  prisoners  are  not 
liable  to  any  punishment  on  account  of  the  previous  flight. 

Art.  9. — Every  prisoner  is  bound  to  give,  if  he  is  questioned  on  the  subject, 
his  true  name  and  rank,  and  if  he  infringes  this  ride,  he  is  liable  to  have  the  ad- 
vantages given  to  prisoners  of  his  class  curtailed. 

Art.  10. — Prisoners  of  war  may  be  set  at  liberty  on  parole  if  the  laws  of  their 
country  allow,  and,  in  such  cases,  they  are  bound,  on  their  personal  honor,  scrupu- 
lously to  fulfil,  both  toivards  their  own  Government  and  the  Government  by  whom 
they  were  made  prisoners,  the  engagements  they  have  contracted. 

In  such  cases  their  own  Government  is  bound  neither  to  require  of  nor  accept 
from  them,  any  service  incompatible  with  the  parole  given. 

Art.  11. — A  prisoner  of  tvar  cannot  be  coynpelled  to  accept  his  liberty  on  parole; 
similarly  the  hostile  Government  is  not  obliged  to  accede  to  the  request  of  the  prisoner 
to  be  set  at  liberty  on  parole. 

Art.  12. — Prisoners  of  ivar  liberated  on  parole  and  recaptured  bearing  arms 
against  the  Government  to  whom  they  had  pledged  their  honor,  or  against  the  allies 
of  that  Government,  forfeit  their  right  to  be  treated  as  prisoners  of  war,  and  can 
be  brought  before  the  courts. 

Art.  13. — Individuals  who  follow  an  army  without  directly  belonging  to  it, 
such  as  newspaper  correspondents  and  reporters,  sutlers  and  contractors,  who 
fall  into  the  enemy's  hands  and  whom  the  latter  thinks  expedient  to  detain  are  en- 
titled to  be  treated  as  prisoners  of  war,  provided  they  are  in  possession  of 
a  certificate  from  the  military  authorities  of  the  army  which  they  ivere  accom- 
panying. 

Art.  14. — An  inquiry  office  for  prisoners  of  war  is  instituted  on  the  com- 
mencement of  hoslililies  in  each  of  the  belligerent  States,  and,  when  necessary,  in 
neutral  countries  which  have  received  belligerents  in  their  territory.  It  is  the 
function  of  this  office  to  reply  to  all  inquiries  about  the  prisoners.  It  receives 
from  the  various  services  concerned  full  information  respecting  internments  and 
transfers,  releases  on  parole,  exchanges,  escapes,  admissions  into  hospital,  deaths, 
as  well  as  other  information  necessary  to  enable  it  to  make  out  and  keep  up  to  date 
an  individual  return  for  each  prisoner  of  war.  The  office  must  state  in  this  return 
the  regimental  number,  name  and  surname,  age,  place  of  origin,  rank,  unit, 
wounds,  date  and  place  of  capture,  internment,  wounding  and  death,  as  well  as 
any  observations  of  a  special  character.  The  individual  return  shall  be  sent  to 
the  Government  of  the  other  belligerent  after  the  conclusion  of  peace. 

It  is  likewise  the  function  of  the  inquiry  office  to  receive  and  collect  all  objects 
of  personal  use,  valuables,  letters,  etc.,  found  on  the  field  of  battle  or  left  by  prisoners 


PRISONERS    OF    WAR  585 

who  have  been  released  on  parole,  or  exchanged,  or  who  have  escaped,  or  died  in 
hospitals  or  ambulances,  and  to  forward  them  to  those  concerned. 

Art.  15. — Relief  societies  for  prisoners  of  war,  which  are  properly  constituted 
in  accordance  with  the  laws  of  their  country  and  with  the  object  of  serving  as  the 
channel  for  charitable  effort  shall  receive  from  the  belligerents,  for  themselves  and 
their  duly  accredited  agents  every  facility  for  the  efficient  performance  of  their 
humane  task  within  the  bounds  imposed  by  military  necessities  and  administra- 
tive regulations.  Ageiits  of  these  societies  may  be  admitted  to  the  places  of  intern- 
ment for  the  purpose  of  distributing  relief,  as  also  to  the  halting  places  of  repa- 
triated prisoners,  if  furnished  with  a  personal  permit  by  the  military  authorities, 
and  on  giving  an  undertaking  in  writing  to  comply  with  all  measures  of  order 
and  police  which  the  latter  may  issue. 

Art.  16. — Inquiry  offices  enjoy  the  privilege  of  free  postage.  Letters,  money 
orders,  and  valuables,  as  well  as  parcHs  by  post,  intended  for  prisoners  of  war,  or 
dispatched  by  them,  shall  be  exempt  from  all  postal  duties  in  the  countries  of 
origin  and  destination,  a^  well  as  in  the  countries  they  pass  through. 

Presents  and  relief  in  kind  for  prisoners  of  war  shall  be  admitted  free  of  all 
import  or  other  duties,  as  well  as  of  payments  for  carriage  by  the  State  railways. 

Art.  17. — Officers  taken  prisoners  shall  receive  the  same  rate  of  pay  as  officers 
of  corresponding  rank  in  the  country  where  they  are  detained,  the  amount  to  be 
ultimately  refunded  by  their  own  Government. 

Art.  18. — Prisoners  of  war  shall  enjoy  complete  liberty  in  the  exercise  of  their 
religion,  inclvuiing  attendance  at  the  services  of  whatever  church  they  may  belong 
to,  on  the  sole  condition  that  they  comply  ivith  the  measures  of  order  and  police 
issued  by  the  military  authorities. 

Art.  19. — The  wills  of  prisoners  of  tvar  are  received  or  drawn  up  in  the  same 
way  as  for  soldiers  of  the  national  army. 

The  same  rules  shall  he  observed  regarding  death  certificates  as  well  as  for  the 
burial  of  prisoners  of  ivar,  due  regard  being  paid  to  their  grade  and  rank. 

Art.  20. — After  the  conclusion  of  peace,  the  repatriation  of  prisoners  of  war 
shall  be  carried  out  as  quickly  as  possible. 

HOSTAGES 

1591.  The  custom  of  demanding  one  or  more  persons  as  hostages 
to  ensure  the  fulfilhiient  of  certain  agreements  between  the  belhg- 
erents  must  be  regarded  as  contrary  to  the  laws  of  war. 

1592.  In  no  case  may  a  beUigerent  consider  himself  authorized 
to  put  hostages  to  death  because  of  the  non-fulfilment  of  obliga- 
tions or  as  reprisals  in  case  the  persons  given  as  hostages  to  the 
encm}'  have  been  injured  or  killed. 

1593.  It  shall  only  l^c  lawful  to  detain  certain  influential  persons 
as  hostages  in  order  to  take  advantage  of  their  moral  authority 
to  obtain  from  a  country  the  fulfilment  of  the  obligations  assumed 
by  or  imposed  on  it  in  time  of  war.  Such  persons  must,  however,  be 
treated  as  prisoners  of  war,  due  regard  being  paid  to  their  rank 
and  condition;  they  cannot  be  punished  nor  subjected  to  cruel 


586  INTERNATIONAL   LAW    CODIFIED 

treatment  in  case  the  purpose  which  was  sought  by  detaining  them 
as  hostages  has  not  been  attained. 

DUTIES   OF   BELLIGERENTS   TOWARDS   THE   WOUNDED   AND   SICK 

1594.  Belhgerents  must  consider  the  wounded  and  sick  as 
exempt  from  the  laws  of  war  and  allow  the  greatest  freedom  to  the 
members  of  the  medical  service  and  to  those  assisting  them.  They 
must  permit  them  to  fulfill,  under  the  protection  of  the  "common " 
law  of  peace,  their  humanitarian  mission,  and  remove  all  obstacles 
preventing  their  carrying  out  all  the  measures  which,  according 
to  medical  science  and  humanitarian  requirements,  they  may  deem 
necessary  to  ameliorate  the  condition  of  the  wounded.  The  laws 
of  humanity  impose  in  effect  a  sacred  duty  to  consider  persons 
attached  to  and  materials  used  in  the  medical  service  in  time  of 
war  as  inviolable. 

1595.  All  the  signatory  states  of  the  Geneva  Convention  of 
August  22,  1864,  renewed  July  6,  1906,  respecting  the  amelioration 
of  the  condition  of  the  wounded  in  time  of  war,  or  states  which  have 
adhered  to  that  Convention,  are  bound  to  abide  faithfully  and 
strictly  by  all  the  provisions  of  that  Act  and  must  see  that  it  is 
strictly  complied  with  by  soldiers,  bringing  it  to  the  notice  of  all 
the  army  corps  and  punishing  violations  thereof. 

1596.  Similarly,  Governments  must  accept  the  changes  which 
are  deemed  necessary  by  speciahsts  for  the  better  functioning  of  the 
medical  service  in  time  of  war,  in  order  better  to  carry  out  the  hu- 
manitarian purpose  sought  by  the  Geneva  Convention. 

1597.  Any  state  which,  in  time  of  war,  intends  to  abide  by  the 
laws  of  civilization  and  the  duties  of  humanity  must  (independently 
of  any  participation  in  or  adhesion  to  the  Geneva  Convention  or  of 
the  observance  of  the  same  rules  by  the  enemy)  consider  as  an  im- 
perative principle  of  the  law  of  natural  justice  and  humanity  the 
respect  of  sick  or  wounded  soldiers  and  of  the  medical  personnel 
by  applying  to  them  the  laws  of  humanity  rather  than  those  of  war, 
saving  the  necessary  safeguard  of  its  own  interests  and  observing 
the  rules  which  follow. 

1598.  Wounded  or  sick  soldiers  must  be  received  and  cared  for, 
whatever  their  nationality  may  be.  Therefore,  it  is  left  to  the  com- 
manders-in-chief either  to  deliver  up  immediately  to  the  hostile 
outposts  enemy  soldiers  wounded  during  the  fight,  if  circumstances 


WOUNDED    AND    SICK  587 

pemiit  or  to  allow  the  greatest  liberty  to  all  persons  of  the  medical 
corps  in  giving  these  wounded  all  the  care  and  attention  necessary. 

AMBULANCES,    HOSPITALS,    MEDICAL   SERVICE 

1599.  The  personnel  of  military  ambulances  and  hospitals, 
which  comprises  the  commissariat,  the  medical  service,  that  of 
administration  and  transport  of  wounded,  as  well  as  voluntary 
aids,  members  and  agents  of  voluntary  aid  societies  duly  author- 
ized to  assist  the  official  medical  personnel,  shall  be  considered 
neutral  so  long  as  they  attend  to  their  duties  and  there  are  wounded 
to  receive  and  care  for. 

1600.  The  persons  mentioned  in  the  preceding  article  shall  have 
the  right  even  after  the  military  occupation  of  the  enemy  has 
ceased,  to  continue  attending  to  their  duties  in  the  hospitals  and 
ambulances  to  the  service  of  which  they  are  attached,  or  to  ask 
permission  to  join  the  corps  to  which  they  belong.  It  shall  then 
be  left  to  the  officer  commanding  the  army  of  occupation  to  insure 
the  freedom  of  departure  of  such  persons,  subject  to  the  conditions 
fixed  by  him  in  conformity  with  military  necessities.  He  may 
impose  on  them  the  obligation  to  postpone  their  departure  for  a 
few  days  and  have  them  escorted  as  far  as  the  hostile  outposts. 

1601.  Mihtary  ambulances  and  hospitals  which  are  in  terri- 
tory occupied  by  the  enemy  also  enjoy  the  privilege  of  neutrality, 
so  long  as  they  contain  sick  or  wounded ;  and  the  evacuation  of  the 
ambulances  and  hospitals  together  with  the  personnel  directing 
them  shall  likewise  enjoy  the  same  privilege. 

1602.  The  belligerents  must  place  on  the  ambulances,  hospitals 
and  wagons  or  other  contrivances  serving  for  the  transport  of 
wounded,  the  uniform  and  special  flag  prescribed  by  the  Geneva 
Convention.  This  flag  must  always  be  accompanied  by  the  na- 
tional flag.  In  like  manner,  the  personnel  attached  to  the  medical 
service  must  wear  a  special  brassard,  save  when  otherwise  author- 
ized by  the  military  authorities. 

RIGHTS   OVER   HOSPITAL   FURNISHINGS 

1603.  The  furnishings  of  military  hospitals  shall  be  subject  to  the 
laws  of  war,  when  there  are  no  longcj-  sick  or  wounded  to  be  cared 
for. 


588  INTERNATIONAL   LAW    CODIFIED 

The  furnishings  of  field  hospitals  and  ambulances  enjoy  the 
privilege  of  neutrality. 

Persons  attached  to  the  hospital  service  shall  always  have  the 
right,  when  they  leave,  to  take  away  with  them  any  articles  of 
their  personal  property. 

WOUNDED    RECEIVED    IN    PRIVATE   HOUSES 

1604.  It  shall  be  left  to  the  commanders  of  the  belligerent  armies 
to  respect  and  protect  the  inhabitants  of  the  country  occupied  by 
them  who  care  for  the  wounded,  and  to  encourage  them  by  appeal- 
ing to  their  generosity  and  granting  them  certain  advantages 
in  return  for  their  generous  conduct. 


WHEN    CAN    THE    MEDICAL    STAFF    BE    DENIED    THE    PRIVILEGE    OF 

NEUTRALITY? 

1605.  A  belligerent  has  the  right  to  deny  all  privileges  of  neu- 
trality to  the  medical  staff  and  establishments  when  it  is  shown  and 
the  proof  thereof  may  be  adduced,  that  the  persons  attached  to  this 
service,  or  the  hospitals,  establishments  and  ambulances  desig- 
nated to  receive  the  wounded  and  sick,  have  been  employed  for 
any  operation  foreign  to  their  humanitarian  purpose. 


DUTIES   TOWARD   THE   DEAD    ON   THE   FIELD   OF   BATTLE 

1606.  The  belligerents  must  respect  the  corpses  of  soldiers 
killed  in  battle,  protect  them  against  plunder  and  outrage,  insuring, 
by  means  of  appropriate  punishment,  the  observance  of  orders  by 
their  soldiers  and  by  private  persons. 

1607.  Outrages  upon  the  corpses  of  soldiers  killed  on  the  field  of 
battle  and  especially  mutilation,  shall  be  deemed  dishonorable 
acts  on  the  part  of  persons  and  governments  which  have  not  taken 
the  necessary  steps  for  their  prevention. 

1608.  It  shall  be  deemed  a  duty  of  humanity  to  take,  when  cir- 
cumstances allow,  the  necessary  measures  to  give  burial  to  the 
dead  and  assure  full  liberty  and  absolute  security  to  persons  who 
may  wish  to  fulfil  this  sacred  duty. 


« . 


Jr 


WOUNDED    AND    SICK  589 

1609.  It  shall  likewise  be  considered  a  reciprocal  duty  upon  bel- 
ligerents, when  they  may  do  so  without  grave  difficulties,  to 
collect,  before  burying  the  dead,  all  the  tokens  likely  to  establish 
their  identity  and  to  forward  these  to  the  commander  of  the  hos- 
tile army. 


TITLE  XI 

RIGHTS  OF  THE  BELLIGERENTS  OVER  ENEMY 

PROPERTY 

RIGHTS    OVER    THE    PROPERTY    BELONGING    TO    THE    STATE    AND    TO 

PRIVATE    PERSONS 

1610.  A  belligerent  has  the  right  to  take  possession  of  and  con- 
fiscate property  belonging  to  the  enemy  State  which  may  come  into 
his  hands. 

He  may  therefore  seize  and  appropriate  to  his  own  use,  arms  and 
any  kind  of  munitions  of  war,  even  if  in  warehouses,  supplies, 
money  and  securities  strictly  the  property  of  the  State,  the  rolling 
stock  of  government-owned  railroads  and  the  apparatus  of  the 
telegraph  service,  war  vessels  and  others  adapted  to  war  purposes, 
and  in  general,  any  personal  property  of  the  State  apt  to  be  used 
or  usable  for  war  purposes. 

A  belligerent  is  bound  to  respect  and  leave  untouched  the  per- 
sonal property  of  institutions  dedicated  to  religion,  charity,  edu- 
cation, arts  and  sciences,  notwithstanding  the  fact  that  such  es- 
tablishments belong  to  the  enemy  State. 

1611.  The  private  property  of  enemy  citizens  should  be  regarded 
as  inviolate,  in  war  on  land  as  well  as  in  maritime  war,  subject, 
however,  to  the  limitations  which  may  be  regarded  as  based  upon 
the  necessities  of  war,  the  damage  and  destruction  justified  as 
incidental  to  attack  or  defense,  and  in  certain  well-established 
cases,  the  liability  to  confiscation,  when  the  belligerent  may  be 
regarded  as  authorized  to  exercise  the  right  of  prize  capture. 

ENFORCED   EXPROPRIATION   OF   PRIVATE   PROPERTY 

1612.  Military  commanders  may  take  possession  in  enemy 
territory  of  the  personal  property  of  private  persons  which  may 

590 


RIGHTS   OF   BELLIGERENTS   OVER  ENEMY   PROPERTY  591 

be  useful  for  war  purposes,  and  especially  of  property  which  may 
be  required  for  security  and  defense,  subject,  however,  to  the  ob- 
ligation of  indemnifying  the  expropriated  owners. 

1613.  It  shall  be  within  the  power  of  the  aforesaid  commanders 
in  the  enemy  country  to  compel  private  individuals  or  corporations, 
by  the  use  of  force,  if  necessary,  to  surrender  all  such  personal 
property  as  may, by  its  nature  or  design,  be  useful  for  war  purposes, 
paying  to  such  persons  or  corporations  due  compensation,  or  by 
reserving  their  right  to  obtain  payment  from  the  belligerent 
subsequently  held  obligated  to  pay. 

The  following  property  shall  come  under  this  head :  railroad  and 
telegraph  apparatus,  arms,  munitions  and  supplies  intended  for 
the  army  and  which  might  be  needed  for  the  equipment  of  troops. 

Army  commanders  may  also  provide  themselves  in  the  enemy 
country  with  materials  or  supplies  needed  by  them,  by  imposing 
requisitions  and  war  contributions. 

REQUISITIONS 

1614.  Requisition  consists  in  providing  things  necessary  to  the 
troops  (provisions,  forage,  fuel,  clothing,  means  of  transportation, 
etc.)  by  imposition  of  the  commander  upon  the  country  crossed 
or  occupied  b}^  him,  and  without  any  right  to  reimbursement. 

1615.  The  military  commanders  who  wish  to  make  a  requisition 
in  the  enemy  country  must  apply  to  the  local  authorities,  leaving 
it  to  the  latter  to  furnish  what  is  demanded  of  them  and  to  ap- 
portion the  burden  among  the  inhabitants  of  the  country. 

The  commander  is  always  bound  to  give  a  receipt  showing  the 
nature  and  quantity  of  the  things  furnished  which  may  serve  as  a 
title  or  evidence  for  any  claims  which  may  eventually  be  brought 
by  the  authorities  or  private  persons  who  furnished  the  material 
requisitioned. 

1616.  When  there  is  no  authority  in  the  enemy  country  to 
undertake  the  apportionment  of  the  requisition,  or  when,  on  de- 
mand, they  do  not  furnish  the  supplies  promptly,  or  when  their 
work  is  ineffective,  the  military  commander  has  the  right  to  order 
compulsory  requisitions,  employing  soldiers  directly  to  obtain  the 
desired  supplies  from  private  individuals,  delivering  to  them  a  mere 
receipt. 


592  INTERNATIONAL   LAW    CODIFIED 

1617.  Military  conunandcrs  must  undertake  requisitions  in 
the  enemy  country  with  moderation  and  caution,  assisting  the 
local  authorities  in  maintaining  order  and  not  making  excessive 
demands,  having  due  regard  to  the  means  and  resources  of  the 
country. 

1618.  It  is  not  lawful  in  an  enemy  country  to  impose  as  a 
requisition  any  service  of  such  a  nature  as  to  involve  the  inhabi- 
tants in  the  obligation  to  take  part  in  military  operations  against 
their  own  country. 

[See  art.  52  of  Convention  IV,  Hague  Regulations  of  1907 — • 
Transl].; 

CONTRIBUTIONS   OF   WAR 

1619.  A  request  for  money  made  in  an  enemy  country  consti- 
tutes a  war  contribution. 

1620.  A  military  commander  may  levy  a  war  tax  for  the  sole 
purpose  of  replenishing  the  military  cash  box.  He  shall  be  bound 
to  deliver  a  receipt  to  the  commune  or  person  upon  which  or  whom 
it  was  imposed  so  as  to  safeguard  their  rights  to  an  eventual  fu- 
ture reimbursement. 

A  contribution  may  also  be  levied  against  an  enemy  country 
by  way  of  punishment  when : 

(a)  The  country  has  declined  to  satisfy  a  requisition  of  provi- 
sions or  a  service  of  any  kind,  and  there  is  reasonable  ground  for 
belief  that  the  refusal  was  impelled  by  ill-will  or  that  the  supplies 
requested  have  been  sent  away  or  concealed  in  bad  faith. 

(6)  The  country  itself,  or  the  authority  representing  the  govern- 
ment thereof  has  violated  the  laws  of  war; 

(c)  There  exists  a  well-founded  suspicion  that  the  authority 
representing  the  government  of  a  country  or  of  a  commune  has 
facilitated  the  execution  of  crimes  punishable  under  the  laws  of 
war,  or  has  negligently  failed  to  prevent  them. 

1621.  War  contributions  must  be  proportioned  according  to  the 
resources  of  each  country. 

Heavier  contributions  may  be  imposed  when  they  are  inflicted 
as  punishment,  although  they  may  not  be  so  excessive  as  to  become 
a  veritable  spoliation. 


RIGHTS   OF    BELLIGERENTS   OVER   ENEMY    PROPERTY  593 


WAR    BOOTY 

1622.  Anything  which,  following  a  battle  or  fight,  has  fallen 
into  the  hands  of  the  soldiers  of  the  adverse  party  and  whose 
owner  cannot  be  found  may  be  regarded  as  an  object  of  war  prize 
or  deemed  war  booty. 

1623.  Every  soldier  may  take  the  arms,  horses  and  equipment 
belonging  to  the  beaten  enemy,  but  it  shall  not  be  lawful  to  take 
valuables  belonging  to  the  soldiers  of  the  adverse  party  found 
dead  on  the  battlefield  or  declared  prisoners  of  war. 

Wrongful  appropriation  of  such  articles  must  be  deemed  a 
crime  punishable  under  military  law. 

The  military  penal  code  of  Italy  provides  severe  punishment  for  the  wrong- 
ful appropriation  of  articles  belonging  to  soldiers  of  the  enemy,  as  follows: 

Art.  276. — Whoever  shall  have  despoiled  a  soldier  or  any  other  individual 
attached  to  the  army  or  to  a  corps  thereof,  that  is  to  say,  a  prisoner  of  war, 
who  is  found  wounded,  shall  be  punished,  according  to  the  circumstances,  by 
death  preceded  by  degradation,  or  by  hard  labor  for  life  or  for  a  fixed  period. 

Art.  278. — The  party  guilty  of  plunder  shall  be  punished  with  a  term  in 
the  military  prison  or  some  other  form  of  punishment  to  be  determined  by 
special  order. 

The  officer  who  failed  to  prevent  plunder,  while  able  to  do  so,  shall  incur 
the  punishment  of  a  term  in  the  military  prison  accompanied  by  his  dismissal. 

When  he  shall  have  participated  therein,  the  punishment  shall  be  confine- 
ment in  a  military  prison  for  not  more  than  three  years,  always  accompanied 
by  dishonorable  discharge. 

Art.  279. — If  in  connection  with  the  crime  of  plunder  violence  or  maltreat- 
ment occur,  the  punishment  inflicted  shall  be  military  confinement  for  no 
less  than  five  or  more  than  seven  years  if  the  guilty  party  is  an  officer,  without 
prejudice  to  any  punishment  incurred  for  other  and  greater  crimes. 


TITLE  XII 
BELLIGERENTS  IN  NAVAL  WAR 

WHO   MUST  BE   REGARDED   AS   BELLIGERENTS 

1624.  In  time  of  naval  war  the  following  should  be  considered 
as  having  the  status  of  belhgerents: 

(a)  All  war  vessels  of  the  enemy  State,  that  is,  those  which, 
manned  by  a  naval  crew,  under  the  direction  of  a  naval  commander, 
are  authorized  to  carry  the  flag  and  ensign  of  the  navy; 

(6)  The  ships  transformed  by  the  State  into  war  vessels  and 
placed  under  the  direct  authority  and  immediate  control  and  re- 
sponsibility of  the  State  whose  flag  they  carry; 

(c)  The  volunteer  auxiliary  navy  created  by  reason  of  the  war 
under  due  authorization  of  the  Government; 

(d)  Private  ships  legally  commissioned  by  the  Government 
as  privateers  under  letters  patent  or  letters  of  marque; 

(e)  All  the  sailors  constituting  the  crews  of  such  ships; 
(/)  The  mustered-in  personnel  of  the  coast  guard; 

(g)  The  marines  of  the  naval  reserve; 

(h)  The  population  of  a  territory  not  occupied  which,  on  the 
approach  of  the  enemy,  immediately  fit  out  vessels  to  combat 
them  without  having  had  time  to  have  them  transformed  into  war 
craft,  provided  such  population  acts  openly  and  respects  the  laws 
and  usages  of  war. 

See  the  Manual  adopted  at  Oxford  by  the  Institute  of  International  Law 
and  published  in  volume  xxiv  of  the  Annuaire. 

The  formation  of  a  volunteer  auxiliary  navy  should  always  be  authorized  by 
decree  of  the  sovereign.  During  the  Franco-German  war  of  1870,  the  King 
of  Prussia  created  a  volunteer  navy  by  decree  of  July  24,  1870,  the  text  of 
which  is  here  given  as  cited  by  Perels  in  §  34  of  his  work: 

''I  authorize,  on  your  recommendation,  the  formation  of  a  volunteer  naval 
corps  as  follows: 

"1.  An  appeal  shall  be  made  to  all  German  sailors  and  ship  owners  request- 
ing them  to  place  themselves  with  their  resources  and  ships  at  the  disposal 
of  the  fatherland  under  the  following  conditions: 

"  (a)  The  vessels  offered  shall  be  examined  as  to  their  fitness  by  a  commis- 

594 


BELLIGERENTS    IN   NAVAL   WAR  595 

sion  composed  of  two  officers  and  a  naval  engineer.  Their  value,  if  necessary, 
shall  be  appraised  and  the  owner  shall  immediately  receive  one-tenth  of  the 
appraisement  value  to  enlist  sailors  in  sufficient  number. 

"  (b)  The  officers  and  sailors  thus  enlisted  shall  belong  during  the  war  to  the 
federal  navy;  they  shall  wear  its  uniform  and  insignia,  be  subject  to  regula- 
tions and  shall  take  the  military  oath.  The  officers  shall  receive  a  commis- 
sion of  their  rank  and  assurance  that,  on  request,  they  shall,  in  case  of  excep- 
tional service,  be  admitted  finally  into  the  navy.  The  officers  and  sailors 
who,  in  the  performance  of  their  duties  and  without  any  fault  of  theirs  shall 
become  incapable  of  working,  shall  receive  a  pension  in  accordance  with  the 
rules  in  force  in  the  navy; 

"  2.  The  chartered  vessels  shall  navigate  under  the  military  flag  of  the  Con- 
federation. 

"  3.  They  shall  be  fitted  out  for  the  federal  navy  according  to  the  use  that 
may  be  made  of  them." 

Then  follow  the  provisions  respecting  indemnities  which  we  do  not  deem 
it  necessary  to  give. 

It  ensues  from  this  decree  that  the  volunteer  navj'  thus  organized  was  to 
be  considered  as  an  auxiliary  fleet  of  the  regular  fleet,  and  that,  accordingly, 
the  French  government  properly  could  not,  as  it  did,  protest  against  such  an 
organization,  by  claiming  that  its  result  was  to  restore  privateering  by  artifice. 


MERCHANT   SHIPS   CONVERTED   INTO    WAR    VESSELS 

1625.  Any  belligerent  state  shall  have  the  right  in  a  naval  war 
to  make  use,  in  addition  to  its  war  vessels  composing  its  regular 
fleet,  of  merchant  ships  fitted  out  as  war  vessels,  when  they  meet 
the  conditions  required  by  the  principles  of  international  law. 

All  the  ships  of  the  belligerent  state  commissioned  to  take 
part  in  the  war,  whether  combatants  or  not,  belong  to  the  armed 
force  of  the  State  and  must  be  governed  by  the  laws  of  war. 

1626.  All  the  states  which  have  signed  and  ratified  Convention 
VII,  which  is  part  of  the  General  Act  of  The  Hague  of  October  18, 
1907,  must,  under  this  convention,  comply  with  the  following 
rules  therein  set  forth,  when  they  wish  to  add  merchant  ships 
to  their  regular  fleet  and  assign  to  such  vessels  the  status  of  war 
ships. 

1627.  A  merchanl  ship  converted  into  a  war  vessel  can  not  have  the 
rights  and  duties  acaniing  to  such  vessels  unless  it  is  placed  under  the 
direct  authority,  immediate  control  and  responsibility  of  the  Power 
whose  flag  it  flies  {art.  1). 

1628.  Merchant  ships  converted  into  war  vessels  must  bear  the 
external  marks  which  distinguish  the  war-ships  of  their  nationality 
(art.  2). 


596  INTERNATIONAL   LAW   CODIFIED 

1629.  The  commander  must  he  in  the  service  of  the  State  and  duly 
commissioned  by  the  competent  authorities.  His  name  must  figure 
on  the  list  of  the  officers  of  the  fighting  fleet  (art.  3). 

1630.  The  crew  must  he  s^ibject  to  military  discipline  (art.  4)- 

1631.  Every  7nerchant  ship  converted  into  a  war  vessel  must  observe 
in  its  operations  the  laws  and  customs  of  war  (art.  5) . 

1632.  A  belligerent  who  converts  a  ?nerchant  ship  into  a  war  vessel 
must,  as  soon  as  possible,  announce  such  conversion  in  the  list  of 
war-ships  (art.  6). 

These  rules  are  the  literal  reproduction  of  articles  1  to  6  of  the  Convention 
relative  to  the  conversion  of  merchant  ships  into  war  vessels;  it  is  the  Vllth 
Convention  of  the  General  Act  of  The  Hague  of  October  18,  1907.  This  con- 
vention, signed  at  first  by  29  states  was  subsequently  signed  on  June  30,  1908, 
by  the  other  states  represented  at  the  second  Conference,  with  the  exception 
of  the  United  States,  China,  the  Dominican  Republic,  Nicaragua  and  Uruguay. 
Turkey  signed  it  with  reservations. 

1633.  While  the  rules  laid  down  in  the  foregoing  articles  can 
be  deemed  binding  under  the  convention  only  upon  the  states 
which  signed  and  ratified  it,  and  then  only  in  case  of  war  among 
themselves,  nevertheless,  they  must  be  considered  as  expressing 
just  principles.  No  belligerent  state  can  ever  expect  that  mer- 
chant ships  added  to  its  regular  fleet  shall  be  regarded  as  warships 
capable  of  exercising  the  rights  of  war  unless  they  display  external 
distinguishing  marks  identifying  them  as  belonging  to  the  regular 
navy;  unless  in  their  conduct  and  operations,  they  comply  with 
the  laws  and  usages  of  war;  unless  they  are  under  the  direct  super- 
vision of  the  naval  authorities  of  the  State  whose  flag  they  fly; 
and  unless  the  State  which  makes  use  of  them  for  warfare  assumes 
responsibihty  for  their  acts. 

Even  admitting  that  in  case  of  urgent  need  and  in  order  to  increase  the 
power  of  its  navy,  a  state  may  appeal  to  the  co-operation  of  its  merchant 
rnarine,  it  must  be  considered  indispensable,  in  order  to  prevent  the  indirect 
revival  of  privateering,  to  place  the  volunteer  navy  directly  under  the  mili- 
tary authority  of  the  State  and  to  compel  it  to  comply  with  military  discipline. 
Otherwise,  they  would  legitimate  war  waged  by  private  persons  in  the  in- 
terest of  the  State,  but  in  their  own  way,  which  would  be  inconsistent  with 
the  fundamental  principle  that  war  must  be  a  struggle  between  the  military 
forces  of  the  belligerent  states. 

During  the  war  of  1870  between  France  and  Germany,  the  Prussian  mili- 
tary authorities,  by  decree  of  July  24,  1870,  called  upon  all  German  sailors 
and  owners  of  merchant  vessels  to  place  themselves  at  the  disposal  of  the 
Government  in  order  to  be  used  against  enemy  war-ships.  France  protested 
against  the  conduct  of  Prussia,  which  had  signed  the  Paris  treaty  of  1856, 


BELLIGERENTS    IN    NA\  AL    WAR  597 

insisting  that  she  was  reviving  privateering.  The  protest,  however,  was 
considered  ill-founded,  on  the  ground  that  the  merchant  vessels  which  had 
heeded  the  appeal  of  the  Prussian  government  could  not  be  considered  as 
private  ships  authorized  to  perform  acts  of  warfare,  since  according  to  the 
decree,  they  were  to  be  subject  to  the  military  authorities  and  fly  the  war 
flag  of  the  Confederation  (see  the  text  of  this  decree  in  Perels,  Manuel  de  droit 
maritime,  note  under  rule  1605). 


PRIVATEERS 

1634.  None  of  the  signatory  states  of  the  Treaty  of  Paris  of 
1856  can  authorize  private  ships  to  perform  acts  of  warfare  against 
the  enemy  as  privateers,  without  violating  the  conventional  rule 
estabhshed  by  that  treaty,  which  has  declared  privateering  to 
be  abolished  between  the  signatory  powers  and,  at  all  events, 
can  deny  international  responsibility  arising  out  of  the  viola- 
tion of  the  conventional  legal  obligation. 

The  declaration  formulated  at  Paris  in  the  protocol  of  April  16,  1856,  was 
signed  by  Austria,  France,  Great  Britain,  Prussia,  Russia,  Sardinia  and 
Turkey.  The  following  states  subsequently  adhered  to  it:  Belgium,  Den- 
mark, Greece,  Netherlands,  Portugal,  Sweden,  Norway,  Switzerland,  Argen- 
tina, Brazil,  Chile,  Ecuador,  Guatemala,  Haiti,  Peru,  and  Uruguay. 

Under  this  declaration,  the  above-mentioned  states  cannot  fit  out  priva- 
teers in  a  war  with  one  another.  Some  writers  (cf.  Wolheim  de  Fonseca,  Le 
commerce  allemand  et  les  tribunaux  des  prises  frnngais;  Gibson  Bowles,  The 
declaration  of  Paris  of  1S56)  have  raised  the  question  whether  the  abolition  of 
privateering,  not  having  been  stipulated  in  the  treaty,  but  formulated  by  a 
declaration,  should  be  considered  as  a  rule  of  conventional  positive  law  with 
respect  to  the  signatory  or  adhering  states;  but  the  solution  of  this  question 
cannot  give  rise  to  any  serious  difficulty.  International  agreements  can  be 
concluded  in  different  ways  (compare  rule  74G) ;  now,  the  states  having  signed 
the  protocol  embodying  the  rules  respecting  maritime  war,  it  is  clear  that 
they  have  thus  established  these  rules  in  common  accord  with  compulsory 
legal  force  both  for  themselves  and  adhering  states. 

It  was  also  asked  whether  one  of  the  signatory  states  could  be  released 
from  the  obligation  of  not  fitting  out  privateers,  by  giving  notice  to  the  other 
states  of  its  intention  of  withdrawing  its  full  acceptance  of  the  Paris  declara- 
tion. A  motion  to  that  effect  was  made  in  1877  in  Great  Britain  and  was 
subsequently  discussed  on  the  2d  of  March,  1877,  in  the  House  of  Commons 
(see  for  the  details,  Perels,  §  34 B  and  CJessner,  Preliminaire,  Le  droit  maritime 
d  I'epoque  actuelle,  pp.  55  el  seq.)  In  order  to  remove  all  doubt,  we  refer  to  the 
principles  laid  down  in  rules  26,  830  and  912. 

[The  United  States  abstained  from  signing  the  Declaration  of  Paris  be- 
cause it  did  not,  in  addition  to  privateering,  also  abolish  the  practice  of  cap- 
turing private  property  at  sea. — Transl.] 

1635,  Using  privateers  to  fight  the  enemy  must  always  be  re- 
garded as  contrary  to  the  fundamental  principles  of  modern  custom- 


598  INTERNATIONAL   LAW    CODIFIED 

ary  law,  which  aims  principally  at  controlling  and  civilizing  war- 
fare and  at  rendering  its  baneful  consequences  less  detrimental. 
Every  civihzed  state  should  refrain  from  authorizing  privateering. 

1636.  Fitting  out  privateers  may  be  justified  as  a  necessary 
measure  of  defense  as  regards  a  belligerent  state  which,  under  the 
right  of  reprisal,  authorizes  privateering  against  a  hostile  state 
which,  in  arbitrary  violation  of  conventional  law,  attacks  it  by 
means  of  privateers. 

1637.  When  a  state  is  compelled  to  authorize  privateering  as 
reprisals  against  a  hostile  state  not  a  signatory  of  the  treaty  of 
Paris  of  1856  or  not  adhering  thereto,  or  which  violates  that  treaty, 
it  must  be  regarded  as  bound  to  see  that  the  exercise  of  the  rights 
of  war,  on  the  part  of  the  privateers  which  it  has  duly  commis- 
sioned, are  strictly  regulated;  it  would  incur  responsibility  for  any 
negligent  failure  in  this  respect,  or  if  it  had  not,  by  means  of  proper 
regulations,  sought  to  prevent  all  excess  and  arbitrary  acts  on  the 
part  of  its  privateers. 

1638.  Privateers  cannot  be  considered  as  belonging  to  the  public 
forces  of  the  State  unless  they  are  provided  with  the  special  au- 
thorization to  undertake  acts  of  warfare  by  the  superior  military 
authorities  empowered  to  confer  upon  them  the  license  to  engage 
in  privateering,  known  as  letters  of  marque. 

Acts  of  warfare  undertaken  by  them  shall  not  be  deemed  lawful 
unless  the  instructions  contained  m  the  letter  of  marque  are  strictly 
adhered  to. 

1639.  Privateers  duly  authorized  by  a  belligerent  state  possess- 
ing that  right  may  demand  that  the  laws  and  usages  of  war  be 
applied  to  them,  provided  however,  that  they  themselves  observe 
the  rules  of  war. 

1640.  A  belligerent  has  no  right  to  treat  privateers  duly  com- 
missioned by  the  Government  of  the  hostile  state  as  pirates,  al- 
though it  may  have  formally  declared  its  intention  so  to  consider 
them. 

If,  however,  privateers  have  been  authorized  to  wage  war  as  such 
by  one  of  the  states  bound  by  the  prohibition  against  privateering 
contained  in  the  treaty  concluded  at  Paris,  March  30,  1856,  any 
belligerent  could  hold  both  the  privateers  and  the  state  licensing 
them  liable  for  the  acts  committed  by  them. 

Compare  rules  301,  603  and  611. 


BELLIGERENTS    IN    NAVAL    WAR  599 

1641.  If,  under  the  national  law  of  the  flag  of  a  merchant  ship 
which  has  accepted  letters  of  marque  from  a  foreign  government, 
national  merchant  vessels  are  prohibited  from  undertaking  service 
as  privateers  for  a  foreign  state  under  penalty  of  being  treated 
as  pirates,  any  such  vessel  could  be  treated  as  such,  not  only  by 
the  state  whose  nationality  it  bears,  but  also  by  any  third  bellig- 
erent Power  against  which  it  may  have  committed  hostile  acts. 

There  are  numerous  examples  of  the  kind  contemplated  in  this  rule. 

The  French  naval  ordinance  of  1681  reads  as  follows  (III,  art.  3): 

"We  forbid  all  our  subjects  to  accept  commissions  from  any  kings,  princes 
or  foreign  states,  to  arm  vessels  in  time  of  war  to  act  as  privateers  under  their 
flag,  wdthout  our  permission,  under  penalty  of  being  treated  as  pirates." 

Sometimes  the  prohibition  is  decreed  by  each  state  declaring  its  neutrality, 
at  the  same  time  forbidding  national  merchant  ships  to  accept  lettersof  marque 
from  either  belhgerent.  This  is  what  Spain  and  the  United  States  did  when 
the  Franco-German  war  of  1870  broke  out. 

There  are  treaties  in  which  it  is  stipulated  that  the  respective  merchant 
ships  are  prohibited  from  accepting  letters  of  marque  in  case  of  war  between 
one  of  the  contracting  parties  and  a  third  power. 

Article  20  of  the  treaty  of  Sept.  10,  1785,  between  Prussia  and  the  United 
States  reads  as  follows:  "No  citizen  or  subject  of  the  contracting  parties  shall 
take  from  any  Power  with  which  the  other  may  be  at  war  any  commission  or 
letter  of  marque  for  arming  any  vessel  to  act  as  a  privateer  against  the  other, 
on  pain  of  being  punished  as  a  pirate." 

It  seems  evident  to  us  that  in  such  a  case  the  belligerent  may  treat  as  a 
pirate  a  privateer  which  has  violated  its  national  law. 

1642.  Privateers  may  be  treated  as  pirates: 

(a)  If  they  wage  war  after  the  time  fixed  by  the  letters  of  marque 
which  have  authorized  them  to  fit  out  as  privateers,  or  after  the 
war  is  over,  and  when  their  bad  faith  may  be  presumed; 

(6)  If  they  have  accepted  letters  of  marque  from  both  bel- 
ligerents. 

Compare  Perels,  Droil  maritime,  §  34B. 

1643.  It  is  the  duty  of  all  civilized  states  to  consider  the  aboli- 
tion of  privateering,  which  was  declared  binding  upon  the  signa- 
tory states  of  the  treaty  of  Paris  of  1856,  as  the  rule  most  rational 
and  just  to  everyone,  in  view  of  the  intrinsic  difficulty  of  subject- 
ing privateers  to  discipline. 

It  sufhcos  to  note  that  while  the  privateer  is  considered  as  belonging  to  the 
naval  forces  of  the  State,  in  reality  it  is  subject  to  the  authority  of  the  captain. 

Therefore,  the  absence  of  control  of  the  military  authorities  constitutes  a 
primary  intrinsic  difficulty  to  compliance  with  military  duties,  and  to  modera- 
tion and  discipline  ou  the  part  of  privateers.     Besides,  as  prizes  are  divided 


600  INTERNATIONAL   LAW    CODIFIED 

between  the  State  which  has  granted  the  letters  of  marque  and  the  privateer, 
the  result  is  to  legitimate  acts  of  warfare  performed  both  for  a  private  purpose 
and  in  a  public  interest  and  necessarily  the  use  of  armed  force  for  the  advan- 
tage of  private  persons. 

It  is  preferable  for  states  whose  navy  is  inadequate  to  have  recourse  to  an 
auxiliarj'  volunteer  nav>-. 

The  Italian  merchant  marine  code  lays  down  as  a  principle,  in  article  208, 
that  privateering  is  abolished,  and  declares  it  lawful  only  by  way  of  reprisal 
against  states  which  have  not  adhered  to  the  Paris  convention  of  i856  or  have 
denounced  it. 


MERCHANT  SHIPS  ENGAGED  IN  WARFARE 

1644.  No  private  ship  which  has  not  been  duly  mustered  into 
the  navy  of  a  belligerent  state  and  which  performs  acts  of  hos- 
tility against  the  ships  of  the  enemy  state  can  expect  such  acts 
to  be  considered  as  acts  of  war.  They  must,  on  the  contrary,  be 
regarded  as  acts  of  piracy. 

1645.  The  belligerent  acts  of  any  private  ship  which,  even  when 
privateering  is  permitted,  operates  without  a  legal  commission  or 
letters  of  marque,  shall  likewise  be  regarded  as  acts  of  piracy. 

The  acts  of  a  privateer,  provided  with  letters  of  marque,  which 
exceed  or  are  not  comprised  within  its  legal  commission  or  letters 
of  marque  shall  also  be  regarded  as  acts  of  piracy. 

1646.  Private  ships  shall  be  permitted,  in  time  of  maritime  war, 
to  resort  to  force  to  defend  themselves  against  hostile  ships  which 
seek  to  attack  them,  and  any  hostile  act  accompHshed  by  them 
under  these  circumstances  shall  be  regarded  as  an  act  of  legitimate 
defense. 

1647.  Any  act  of  hostility  on  the  part  of  a  national  merchant 
ship  shall  be  likewise  regarded  as  legitimate  if  the  ship,  being  pres- 
ent when  an  enemy  vessel  attacks  another  national  ship,  proceeds 
to  the  latter's  defense  and  in  some  way  makes  use  of  her  armament 
to  repel  the  attack. 

(Whatever  authority  there  may  be  for  the  arming  of  merchant  ships  to  resist 
capture,  a  practice  quite  common  during  the  wars  between  1780  and  1860, 
and  their  concdeed  privilege,  it  is  necessary  to  add  that  by  so  arming  these 
vessels  waive  their  immunities  as  merchant  ships,  with  all  the  legal  conse- 
quences flowing  from  that  change  of  status.  Their  status  as  armed  enemies 
is  evident  when  the  principle  is  recalled  that  war  makes  enemies  of  the  na- 
tionals of  the  respective  belligerents.  By  taking  arms  a  vessel  of  a  belliger- 
ent nation  becomes  an  armed  enemy,  and  can  hardly  lay  claim  to  any  im- 
munities as  a  peaceful  merchantman.  The  test  of  her  status  lies  in  her 
capacity  to  inflict  injurj'  upon  a  belligerent.    Hence  in  these  days,  since  priva- 


BELLIGERENTS   IN    NaVaL    WAR  601 

teering  and  piracy  have  nearly  disappeared,  there  is  practically  no  impor- 
tance attached  to  the  distinction  between  arming  for  "  defense  "  and  arming 
for  "offense."  In  our  war  of  1812  with  Great  Britain,  there  does  not  appear 
to  have  been  any  case  where  an  armed  merchantman  claimed  immunity 
from  attack,  with  or  without  warning.  The  question  of  warning  seems  never 
to  have  been  raised.  This  is  made  clear  by  Chief  Justice  Marshall  and  other 
justices  of  the  Supreme  Court  in  the  case  of  The  Nereide,  9  Cranch,  330. 
Neutral  ships,  it  would  seem,  can  hardly  justify  the  carrying  of  armament,  a 
practice  entirely  inconsistent  with  a  non-belligerent  status. — Transl.] 


TITLE  XIII 
ACTS  OF  HOSTILITY  IN  MARITIME  WAR 

GENERAL   RULE 

1648.  Maritime  war  must  be  regarded,  in  principle,  as  subject 
to  the  laws  and  usages  of  war  on  land,  except  for  the  diversity  in 
the  means  adopted  to  attain  its  ultimate  purpose. 

Belligerents  cannot  claim  unlimited  freedom  in  the  choice  of 
the  means  to  be  used  to  attain  their  purpose,  which  is  to  destroy 
the  naval  force  of  the  enemy.  They  are  bound,  as  regards  means 
of  attack  and  defense,  not  only  to  respect  the  prohibitions  estab- 
lished by  "common"  and  conventional  law;  but  they  must  also 
refrain  from  attempting,  by  invoking  the  necessities  of  war,  to 
justify  certain  usages  commonly  considered  as  contrary  to  the 
rational  principles  of  international  justice,  the  interests  of  inter- 
national society  and  the  sentiments  of  humanity  and  civilization. 

At  present,  according  to  the  customs  admitted  by  the  civilized  states  of 
Europe  and  America,  maritime  war  is  an  armed  struggle  against  the  military 
power  and  naval  force  of  the  enemy  and  against  its  economic  power,  which 
gives  rise  to  the  attack  upon  the  peaceful  commerce  of  private  persons  of  the 
hostile  country. 

The  general  conception  of  hostilities  admitted  and  regarded  as  lawful  in 
time  of  naval  war  is  sanctioned  in  the  instructions  of  the  United  States  for 
the  service  of  the  navy  of  June  27,  1900,  The  laws  and  usages  of  war  on  sea, 
known  as  the  United  States  Naval  War  Code. 

Article  I  reads  as  follows:  "The  general  object  of  war  is  to  procure  the  com- 
plete submission  of  the  enemy  at  the  earliest  possible  period  with  the  least 
expenditure  of  life  and  property.  In  maritime  operations  the  usual  measures 
for  attaining  this  object  are:  To  capture  or  destroy  the  military  and  naval 
forces  of  the  enemy;  his  fortifications,  arsenals,  dry  docks  or  dockyards;  his 
various  military  and  naval  establishments,  and  his  maritime  commerce  and 
communications;  to  prevent  his  procuring  war  material  from  neutral  sources; 
to  cooperate  with  the  army  in  military  operations  on  land,  and  to  protect  and 
defend  the  national  territory,  property,  and  seaborne  commerce." 

FIELD   OF   OPERATIONS   OF   NAVAL   WAR 

1649.  The  field  of  operations  of  naval  war  comprises  the  high 
sea  and  the  territorial  waters  of  the  belligerents.    Hostilities  can- 

602 


ACTS    OF    HOSTILITY    IN   MARITIME    WAR  003 

not  take  place  either  in  the  territorial  waters  of  neutral  states  or 
on  parts  of  the  sea  conventionally  neutralized,  or  in  canals  or 
straits  which,  for  the  protection  of  collective  interests,  have  been 
neutralized. 

Cf.  Bonfils-Fauchillp,  §  1269;  Perels,  Droit  maritime,  §  553;  Oppenheim, 
op.  cit.,  II,  §  70. 

Instances  of  waters  neutralized  in  the  collective  interests  of  trade  and  com- 
merce are  numerous.  Under  the  convention  of  Constantinople  of  October  29, 
1888,  the  Suez  Canal  was  neutralized,  as  were  also,  under  the  treaty  of  Berlin 
of  July  13,  1878,  the  river  Danube,  from  the  Iron  Gates  to  its  mouth  (art.  52), 
and  the  Congo  and  the  Niger,  under  the  treaty  of  Berlin  of  February  26,  1885 
(art.  XXV). 

The  belligerents  may  also,  by  means  of  conventions  concluded  in  contem- 
plation of  war  between  them,  establish  in  common  agreement  that  acts  of 
hostility  cannot  take  place  in  certain  parts  of  the  sea.  This  was  agreed  upon 
in  1759  between  Russia  and  Sweden  with  respect  to  the  Baltic  Sea  and  was 
proposed  during  the  war  of  1870  between  France  and  Germany,  with  respect 
to  the  seas  of  the  Far  East.     See  Bonfils-Fauchille,  loc.  cit. 

LAWFUL  MEANS  OF  ATTACK  UNDER  PRESENT  LAW 

1650.  Belligerents  are  permitted  under  the  customs  at  present 
in  force,  to  employ  in  maritime  war  the  most  powerful  means  of 
destruction  and  the  terrible  engines  which  modern  science  is  con- 
stantly perfecting  for  annihilating  the  enemy's  naval  force. 

They  may,  with  that  object  in  view,  make  use  of  cannons  of 
all  kinds,  rifles  of  any  model,  torpedoes,  ships  of  any  construction, 
submarine  boats  and  any  other  contrivance  which  may  be  invented 
to  destroy  the  naval  forces  of  the  adversary  as  rapidly  as  possible. 

Maritime  war  in  our  time  is  a  veritable  war  of  extermination  and  destruc- 
tion, and  modern  science  concentrates  all  its  efforts  towards  securing  the  most 
up  to  date  and  powerful  means  of  sinking  hostile  warships  with  their  crews. 
In  short,  naval  battles  are  a  dc^struction  of  naval  forces  and  an  annihilation 
of  human  lives.  It  is  with  reason  that  it  is  claimed  as  neither  logical  nor 
human  to  admit  such  customs;  but  they  are  the  unavoidable  consequence  of 
maritime  war,  on  account  of  the  lack  of  conventional  rules  and  the  nature  of 
the  element  on  which  the  struggh;  is  carried  on.  So  long  as  war  shall  not  have 
been  abolished,  it  will  always  be  difficult  to  regulate  and  place  it  in  harmony 
with  the  principles  of  humanity.  It  is  a  pity  Ihat  the  noblest  sentiments  are 
disregarded,  even  those  of  loyally  and  military  honor,  which  ought  to  be  re- 
spected during  the  struggle. 

This  can  be  said,  for  example,  with  regard  to  the  use  of  submarines  in 
launching  torpedoes  against  which  the  enemy  is  powerless  to  defend  himself. 
It  may  with  reason  be  maintained  that  it  is  not  fair  to  sink  by  means  of  sub- 
marines a  shif)  which  is  unable  lo  distinguish  her  adversary  .so  as  to  enable 
her  to  defend  herself  against  it,  and  that  such  unfair  means  of  attack  should 
be  prohibited.    But  those  who  believe  that  one  of  the  principal  characteristics 


604  INTERNATIONAL   LAW    CODIFIED 

of  maritime  war  is  a  struggle  for  destruction,  the  purpose  of  which  can  only 
be  attained  through  the  annihilation  of  the  crew  of  the  hostile  ship,  go  so  far 
as  to  claim  that  any  means  of  destruction  aimed  directly  at  the  enemy  is  per- 
missible and  that,  consequently,  the  use  of  submarines  cannot  be  prohibited. 


MEANS  THAT  SHOULD  BE  CONSIDERED  LAWFUL 

1661.  Belligerents  have  not  an  unlimited  right  in  the  choice  of 
means  for  injuring  the  enemy. 

1652.  Means  which  imply  treachery  must  be  regarded  as  unlaw- 
ful.   These  should  include: 

(a)  The  killing  or  wounding  of  individuals  of  the  adverse  party 
by  treachery; 

(6)  The  improper  use  of  the  flag  of  truce,  the  use  of  a  false  flag 
or  uniforms  or  insignia  of  any  kind,  especially  those  of  the  enemy, 
as  well  as  the  distinctive  signs  of  hospital  relief  organizations 
indicated  hereafter. 

1663.  The  following  must  be  deemed  barbarous,  in  addition  to 
prohibitions  established  in  special  conventions: 

(a)  The  use  of  poison  or  of  poisoned  weapons; 

(6)  The  use  of  arms,  projectiles  or  materials  capable  of  inflicting 
unnecessary  injury.  In  this  category  must  be  classed  explosive 
projectiles  or  cartridges  of  fulminant  or  inflammable  matter 
weighing  less  than  400  grams. 

1664.  It  should  be  considered  as  highly  desirable  for  civilized 
states  to  agree  to  regulate  maritime  war  and  to  insure  in  its  prose- 
cution the  observance  by  the  belligerents  of  the  laws  of  honor  and 
fairness. 

These  states,  therefore,  must  prohibit  any  treacherous  means  of 
attack  which,  instead  of  aiming  at  paralyzing  the  naval  force, 
inevitably  results  in  the  destruction  of  many  human  lives,  victims 
to  military  duty,  and  they  should  limit  and  regulate  the  combat 
so  that  the  attack  will,  so  far  as  possible,  be  directed  against  the 
ship  to  compel  her  to  surrender  and  not  against  the  crew. 

For  this  purpose,  the  use  of  torpedoes,  submarines,  ships  laden 
with  explosives,  ships  with  rams,  or  hollow  balls  filled  with  in- 
flammable materials,  should  be  prohibited  so  as  to  reduce  the 
struggle  to  an  artillery  combat,  where  treachery  would  not  pre- 
vail, but  where  superiority  would  be  assured  to  military  art  and 
the  competent  organization  of  the  naval  force. 


ACTS   OF   HOSTILITY    IN    MARITIME    WAR  605 

The  first  Hague  Conference  of  1899  had  already  expressed  the  wish  that 
governments  should  reach  an  agreement  towards  estabhshing  uniform  rules 
as  to  the  types  and  bores  of  marine  guns  and  cannons.  The  second  Con- 
ference of  1907  thus  formulated  its  wish  on  the  18th  of  October,  at  the  signing 
of  the  General  Act: 

The  Conference  expresses  the  opinion  thai  the  preparation  of  regulations  rela- 
tive to  the  laws  and  customs  of  naval  irar  should  figure  in  the  program  of  the  next 
Conference,  and  that  in  any  case  the  powers  may  apply,  as  far  as  possible,  to  war 
at  sea  the  principles  of  the  convention  relating  to  the  laws  and  customs  of  loar  on 
land. 

It  is  necessary  to  note  also  that  in  the  circular  addressed  on  December  30, 
1898-January  11,  1899,  by  the  Russian  government  to  the  representatives  of 
the  foreign  powers,  among  other  subjects  of  discussion,  the  following  were 
suggested : 

"1.  To  prohibit  the  use  in  the  armies  and  navies  of  any  kind  of  firearms, 
and  new  explosives,  or  any  powder  more  powerful  than  those  now  in  use, 
either  for  rifles  or  cannon. 

"2.  To  prohibit  the  use,  in  naval  warfare,  of  submarine  torpedo  boats  or 
submersibles,  or  other  similar  engines  of  destruction;  to  undertake  not  to 
construct  vessels  with  rams  in  the  future." 

It  is  to  be  hoped  that,  having  due  regard  to  these  precedents,  civilized  states 
will  arrive  at  an  agreement  to  render  naval  warfare  less  terrible,  by  prohibit- 
ing means  of  attack  which,  according  to  present  customs,  greatly  shock  the 
sentiments  of  civilization  and  humanity. 


BOMBARDMENT 

1655.  Bombardment  may  be  considered  as  a  lawful  means  of 
attack  in  naval  warfare;  provided,  however,  that  it  can  be  justi- 
fied by  the  final  end  of  war,  and  that  it  is  effected  in  accordance 
with  the  rules  of  bombardment  adopted  in  war  on  land. 

This  means  of  attack  when  resorted  to  in  naval  war  for  the  sole 
purpose  of  terrifying  the  enemy,  causing  him  damage,  destroying 
public  and  private  property,  provided  such  devastation  cannot 
be  regarded  as  required  by  the  actually  pressing  necessities  of 
war,  must  be  deemed  unlawful  and  contrary  to  the  rational  prin- 
ciples of  law  and  natural  justice,  which  should  govern  war. 

1656.  It  is  incumbent  upon  all  civilized  states  to  recognize  that 
the  legal  rules  established  and  stipulated  by  the  states  represented 
at  the  second  Hague  (Jonference  are  the  expression  of  the  just 
principles  of  international  law,  and  to  comply  with  such  rules 
in  order  to  determine  when  bombardment  may  be  deemed  lawful 
and  when  unlawful  in  naval  war. 

Civilized  states  should  repudiate;  th(;  (n-roneous  idea  that  any 
form  of  devastation,  any  means  of  t(M-ror  by  naval  forces,  any 


606  INTERNATIONAL   LAW    CODIFIED 

damage  caused  to  private  persons  of  the  hostile  state  with  the  ob- 
ject of  terrifying  them  by  the  horrors  of  war  may  be  justified, 
although  not  required  by  the  urgent  necessities  of  military  opera- 
tions. 

It  is  not  always  easy  to  determine  through  positive,  unequivocal  rules  when 
bombardment  may  or  may  not  be  justified  by  the  necessities  of  military  opera- 
tions. Undoubtedly,  a  bombardment  could  never  be  deemed  legitimate  if 
effected  for  the  sole  purpose  of  terrifying,  or  of  punishing  the  resistance  of  the 
enemy  by  the  destruction  of  public  and  private  property.  Some  of  the  parti- 
sans of  unlimited  bombardment  seek  to  justify  everything  by  means  of  the 
specious  argument  that  anything  which  may  increase  the  horrors  of  naval  war 
tends  to  render  it  difficult  and  to  shorten  its  duration;  but  that  would  render 
lawful  any  devastation,  destruction,  fire  and  all  other  measures  calculated 
to  terrify  the  state  which  resists,  in  an  attempt  to  compel  it  to  lay  down  its 
arms  when  it  sees  the  disastrous  effects  of  its  resistance.  The  bombardment 
of  Copenhagen  by  Nelson,  in  1801,  was  designed  to  terrify  the  Danish  fleet 
which  was  at  anchor  in  the  Sund  and  to  accelerate  its  surrender,  yet  Cauchy 
has  characterized  the  conduct  of  the  British  admiral  as  perfidious  and  odious 
and  uncalled  for  (v.  II,  p.  255).  Cf.  Calvo,  v.  IV,  §  2090-2091;  Oppenheim, 
V.  II,  §  213;  Bonfils-Fauchille,  §  1277  and  the  report  of  Holland  to  the  In- 
stitute of  International  Law  at  the  session  of  Venice  in  1896  and  the  rules 
voted  by  the  Institute,  Annuaire,  1896,  pp.  311-312. 

1657.  The  bombardment  of  an  open  and  undefended  city,  or  of 
unfortified  ports  and  coasts  must  be  regarded  as  unlawful  when 
effected  by  naval  forces  and  when  not  required  by  the  necessities 
of  war  and  of  militaiy  operations. 

These  necessities  may  be  recognized  as  valid  Avhen  the  purpose 
of  the  bombardment  is  to  destroy  dock-yards,  military  establish- 
ments, arsenals  or  war  supply  depots. 

Such  would  be  the  case  also  when  the  bombardment  is  designed 
to  protect  the  landing  of  troops  or  marines  which  the  inhabitants 
of  the  open  and  undefended  town  might  seek  to  prevent. 

1658.  The  following  rules  respecting  bombardment  by  naval 
forces  in  time  of  war,  formulated  in  convention  IX,  should  be  con- 
sidered as  legally  binding  upon  the  states  which  have  signed  and 
ratified  the  General  Act  of  The  Hague  of  1907. 

1659.  The  homhardnient  by  naval  forces  of  undefended  ports,  towns, 
villages,  dwellings  or  buildings  is  forbidden. 

A  place  cannot  be  bombarded  solely  because  automatic  submarine 
contact  mines  are  anchored  off  the  harbor.    {Art.  1 .) 

1660.  Military  works,  military  or  naval  establishments,  depdts  of 
arms  or  war  material,  wo7'kshops  or  plants  which  could  be  utilized 


ACTS    OF    HOSTILITY    IN    MARITIME    WAR  607 

for  the  needs  of  the  hostile  fleet  or  army,  and  the  ships  of  war  in  the 
harbor  are  not,  however,  included  in  this  prohibition.  The  comman- 
der of  a  naval  force  niay  destroy  them  with  artillery,  after  a  summons 
followed  by  a  reasonable  time  of  waiting,  if  all  other  means  are  im- 
possible, and  when  the  local  authorities  have  not  themselves  de- 
stroyed them  within  the  time  fixed. 

He  incurs  no  responsibility  for  any  unavoidable  damage  which  may 
be  caused  by  a  bombardment  under  such  circumstances. 

If  for  military  reasons,  immediate  action  is  necessary,  and  no  delay 
can  be  allowed  the  enemy,  it  is  understood  that  the  jjrohibition  to  bom- 
bard the  undefended  town  holds  good,  as  in  the  case  given  in  para- 
graph I,  and  that  the  commander  shall  take  all  due  measures  in  order 
that  the  town  may  suffer  as  little  harm  as  possible.     {Art.  2.) 

1661.  After  due  notice  has  been  given,  the  bombardment  of  unde- 
fended ports,  towns,  villages,  dwellings  or  buildings  may  be  com- 
menced, if  the  local  aiUhonties,  after  a  foi-mal  summons  has  been 
made  to  them,  decline  to  comply  with  requisitions  for  provisions  or 
supplies  necessary  for  the  immediate  use  of  the  naval  force  before  the 
place  in  question. 

These  requisitions  shall  be  in  proportion  to  the  resources  of  the  place. 
They  shall  only  be  demanded  in  the  name  of  the  commander  of  the 
said  naval  force  and  they  shall,  as  far  as  possible,  be  paid  for  in  cash; 
if  tiot,  they  shall  be  evidenced  by  receipts.    {Art.  S.) 

1662.  Undefended  ports,  towns,  villages,  dtvellings  or  buildings 
may  not  be  bombarded  on  account  of  failure  to  pay  money  contribu- 
tions.   {Art.  4-) 

1663.  In  bombardment  by  naval  forces  all  the  necessary  measures 
must  be  taken  by  the  commander  to  spare  as  far  as  possible  sacred 
edifices,  buildings  used  for  artistic,  scientific,  or  charitable  purposes, 
historic  monuments,  hospitals  and  places  where  the  sick  and  wounded 
are  collected  on  the  understanding  that  they  are  not  used  at  the  same 
ti?nefor  military  purposes. 

It  is  the  duty  of  the  inhabitants  to  indicate  such  monuments,  edifices 
or  places  by  visible  signs,  which  shall  consist  of  large,  stiff  rectangular 
panels  divided  diagonally  into  two  colored  tnangidar  portions,  the 
upper  portion  black,  the  lower  portion  white.    {Art.  5.) 

1664.  //  the  military  situation  permits,  the  commander  of  the 
attacking  naval  force,  before  commencing  the  bombardment,  must  do 
his  utmost  to  warn  the  authorities.    {Art.  6.) 


608  INTERNATIONAL   LAW    CODIFIED 

UNLAWFUL   MEANS   OF   ATTACK 

1666.  The  use  of  bullets  which  explode  on  contact  and  flatten, 
causing  wounds  hard  to  heal  should  be  prohibited  to  belligerents 
in  naval  warfare.  This  includes  bullets  with  a  hard  envelope 
which  does  not  completely  cover  the  core  and  contains  incisions. 

The  throwing  of  cannon  shells  or  projectiles  which  emit  as- 
phyxiating or  deleterious  gases  should  likewise  be  prohibited. 

As  to  the  use  of  submarine  mines,  we  must  regard  it  as  indis- 
pensable to  the  protection  of  the  rights  of  peaceful  commerce  to 
recognize  as  binding  upon  all  civilized  states  the  following  rules 
adopted  in  common  agreement  by  the  Powers  represented  at  the 
Hague  Conference  of  1907. 

It  is  the  duty  of  every  civilized  state  to  declare  these  rules  com- 
pulsory by  means  of  instructions  given  to  its  navy. 

The  use  of  dumdum  bullets  employed  by  certain  states,  among  others  by 
Great  Britain  in  her  colonial  wars,  was  prohibited  by  the  convention  of  St. 
Petersburg  of  November  29-December  11,  1878.  See  the  note  under  rule 
1484. 

In  like  manner,  the  rule  proclaimed  bj'  the  first  Hague  Conference,  which 
reads  as  follows,  is  to  be  observed:  "The  contracting  parties  agree  to  abstain 
from  the  use  of  bullets  which  expand  or  flatten  easily  in  the  human  body,  such 
as  bullets  with  a  hard  envelope  which  does  not  entirely  cover  the  core  or  is 
pierced  with  incisions."  (Third  declaration  of  the  Final  Act  of  the  Interna- 
tional Peace  Conference  of  July  29,  1899.)  These  various  rules,  binding  upon 
the  states  which  have  signed  the  conventions  wherein  they  are  stipulated, 
ought  to  be  likewise  regarded  as  binding  upon  other  states,  by  virtue  of  "com- 
mon" law  and  of  the  general  principles  which  compel  belligerents  not  to  vio- 
late the  rights  of  peaceful  traders  of  neutral  states  in  time  of  war. 

AUTOMATIC   SUBMARINE    CONTACT-MINES 

1666.  It  should  be  considered  as  forbidden  as  between  the  bel- 
ligerent states  which  have  signed  or  adhered  to  the  Hague  Conven- 
tion of  1907,  provided  they  alone  are  involved  in  war: 

1.  To  lay  unanchored  automatic  contact  mines,  except  when  they 
are  so  constructed  as  to  become  harmless  one  hour  at  most  after  the 
person  who  laid  them  ceases  to  control  them; 

2.  To  lay  anchored  automatic  contact  mines  which  do  not  become 
harmless  as  soon  as  they  have  broken  loose  from  their  moorings; 

3.  To  use  torpedoes  which  do  not  becomes  harmless  when  they  have 
missed  their  mark.    (Art.  1.) 


ACTS   OF  HOSTILITY   IN   MARITIME  WAR  609 

1667.  It  is  forbidden  to  lay  automatic  contact  mines  off  the  coast 
and  ports  of  the  enemy,  with  the  sole  object  of  intercepting  commer- 
cial shipping.    {Art.  2.) 

1668.  When  anchored  automatic  contact  mines  are  employed,  every 
possible  precaution  must  be  taken  for  the  security  of  peaceful  shipping. 

The  belligerents  undertake  to  do  their  utmost  to  render  these  mines 
harmless  vnthin  a  limited  time  and  should  they  cease  to  be  under  sur- 
veillance, to  notify  the  danger  zones  as  soon  as  military  exigencies 
permit,  by  a  notice  addressed  to  ship  owners,  which  must  also  be  com- 
municated at  once  to  the  Governments  through  the  diplomatic  channel. 
{Art.  3.) 

1669.  Neutral  Powers  which  lay  automatic  contact  mines  off  their 
coasts  must  observe  the  same  rules  and  take  the  same  precautions  as 
are  imposed  on  belligerents.  The  neutral  Power  must  inform  ship 
owners  by  a  notice  issued  in  advance,  lohere  automatic  contact  mines 
have  been  laid.  This  notice  must  be  communicated  at  once  to  the  Gov- 
ernments through  the  diplomatic  channel.    {Art.  4-) 

1670.  At  the  close  of  war,  the  contracting  Powers  undertake  to  do 
their  utmost  to  remove  the  mines  which  they  had  laid,  each  Power  re- 
moving its  own  mines. 

As  regards  anchored  automatic  contract  mines  laid  by  one  of  the  bel- 
ligerents off  the  coast  of  the  other,  their  position  must  be  notified  to 
the  other  party  by  the  Power  which  laid  them,  and  each  Power  must 
proceed  with  the  least  possible  delay  to  remove  the  mines  in  its  own 
waters.    {Art.  5.) 

1671.  The  contracting  Powers  which  do  not  at  present  own  per- 
fected mines  of  the  pattern  contemplated  in  the  present  Convention 
and  which,  consequently,  cmdd.  not  at  present  carry  out  the  rules  laid 
down  in  Articles  I  and  3,  undertake  to  convert  the  materiel  of  their 
mines  as  soon  as  possible,  so  as  to  bring  it  into  conformity  with  the 
foregoing  requirements.     {Art.  6.) 

SUBMARINE    CABLES 

1672.  A  belligerent  cannot,  in  time  of  war,  remove  a  submarine 
cable,  when  the  interruption  of  telegraphic  correspondence  may 
be  detrimental  to  the  interests  of  neutrals,  except  when  the  latter 
allow  the  us(!  of  such  cabK*  for  comtnunicating  with  the  othoi" 
belligerent. 


610  INTERNATIONAL  LAW   CODIFIED 

He  may  cut  a  submarine  cable  which  connects  parts  of  the  ter- 
ritory of  the  hostile  state,  and  which  connects  his  own  territory 
with  that  of  the  other  belligerent. 

1673.  A  submarine  cable  between  two  neutral  territories  shall 
be  deemed  inviolable  and  shall  not  be  cut. 

A  belligerent  may,  however,  cut  a  submarine  cable  connecting 
neutral  territories,  if  he  has  good  reasons  to  believe  that  this  means 
of  communication  is  being  used  for  war  purposes. 

1674.  A  submarine  cable  which  connects  neutral  territory  with 
a  hostile  territory  may  be  cut  in  the  territorial  waters  of  the  enemy. 

It  may  also  be  cut  beyond  territorial  waters  in  case  of  effective 
blockade  and  within  the  limits  of  the  blockade  line. 

1675.  Whenever  the  belligerent  may  deem  it  necessary  by  reason 
of  the  exigencies  of  war  to  cut  a  submarine  cable,  he  must  refrain 
from  any  unnecessary  injuries  which  might  make  it  difficult  to 
put  the  cable  into  operation  when  peace  is  concluded. 

1676.  The  preceding  rules  shall  be  applied  without  any  differ- 
ence between  submarine  cables  belonging  to  the  State  and  those 
belonging  to  private  individuals.  As  regards  private  individuals, 
however,  the  expenses  necessary  to  restore  to  service  the  cables  cut 
by  reason  of  the  exigencies  of  war  and  the  damages  arising  there- 
from shall  be  repaid  or  settled  at  the  conclusion  of  peace. 

1677.  It  is  to  be  desired  that  states  shall  in  common  accord 
establish  rules  for  the  protection  of  submarine  cables  in  time  of 
war,  by  completing  the  convention  of  March  14,  1884,  and  by 
providing  that  international  correspondence,  in  the  interest  of 
neutral  commerce  and  private  persons,  shall  not  suffer  any  of  the 
unavoidable  damages  arising  from  its  interruption  on  account  of 
war. 

So  long  as  such  a  convention  has  not  been  concluded,  the  com- 
mander in  chief  of  the  fleet  must  determine,  in  his  discretion, 
whether  the  exigencies  of  war  make  it  indispensable  to  interrupt 
telegraphic  communications.  Since,  by  reason  of  its  consequences, 
it  is  a  very  serious  measure,  he  should  act  with  moderation  and 
great  caution. 

The  rules  we  advocate  are  based  on  the  principles  admitted  in  conformity 
with  the  regulations  of  naval  warfare,  on  the  rules  adopted  by  the  Institute 
of  International  law  at  the  session  of  Brussels  of  1902,  and  on  the  doctrines 
of  writers. 

The  United  States  Naval  Code  contains  the  following  rules  in  its  article  5: 


ACTS   OF  HOSTILITY   IN   MARITIME   WAR  611 

"1.  Submarine  telegraph  cables  between  points  in  the  territory  of  an  enemy, 
or  between  the  territorj'  of  the  United  States  and  that  of  an  enemy  are  sub- 
ject to  such  treatment  as  the  necessities  of  war  may  require. 

"2.  Submarine  telegraph  cables  between  the  territory  of  an  enemy  and 
neutral  territory  may  be  interrupted  within  the  territorial  jurisdiction  of  the 
enemy,  or  at  any  point  outside  of  neutral  jurisdiction  if  the  necessities  of  war 
require. 

"3.  Submarine  telegraph  cables  between  two  neutral  territories  shall  be 
held  inviolable  and  free  from  interruption." 

Cited  by  Oppenheim,  v.  II,  §  214,  p.  224. 

Compare:  Renault,  De  la  propriete  internationale  des  c&bles  telegraphiques 
sous-marins,  in  Revue  de  droit  international,  v.  XII,  p.  251;  Holland,  in  Journal 
du  droit  international  prive,  XXV,  1908;  Zumlin,  /  cavi  sottomarini  e  il  tele- 
grafo  setiza  filo  nel  Diritto  di  guerra;  Perdrix,  Les  cables  sous-marins  et  leur 
protection  internationale. 

In  the  convention  of  March  14,  1SS4,  the  rights  of  belligerents  are  not  regu- 
lated; on  the  contrary,  under  article  15,  their  freedom  of  action  is  expressly 
reserved. 

LIMITATIONS    UPON   THE   RIGHT   OF   ATTACK 

1678.  It  should  be  held  contrary  to  the  law  of  nations  to  con- 
tinue firing  at  a  hostile  vessel  which,  by  striking  its  colors,  manifests 
its  intention  to  surrender. 

1679.  The  commander  of  a  warship  who  is  sure  that  the  striking 
of  colors  of  the  hostile  vessel  is  not  the  result  of  an  accident  of  the 
fight,  but  a  sign  of  surrender,  is  bound  at  once  to  order  the  ces- 
sation of  firing  and  must  provide  for  the  taking  of  the  vessel. 

These  rules  are  based  on  the  customary  law  of  civilized  countries. 

Article  96  of  the  German  instructions  given  by  Perels,  Droit  maritime, 
§  3oC  reads  as  follows: 

"As  soon  as  a  hostile  ship  has  struck  her  colors,  firing  against  her  must 
cease,  and  she  must  be  taken  possession  of  at  once.  The  commander  must 
immediately  send  an  officer  with  a  provisional  crew  to  take  the  ship  and  give 
notice  to  the  admiral  of  the  squadron." 

Similarly,  the  Austrian  regulations  (111,  n.  1488)  provide  as  follows: 

"If  a  foreign  ship  has  struck  her  colors  and  if  it  is  certain  that  the  colors 
have  really  been  struck  and  not  carried  away  by  a  shot,  firing  must  immedi- 
ately cease."    Compare  Perels,  loc.  cit. 

UNLAWFUL   STRATAGEMS 

1680.  Surprise  and  stratagems  implying  deceit  and  violation 
of  the  laws  of  military  honor  must  be  held  unlawful  in  naval  war- 
fare. 

The  simulation  of  the  flag  when  it  is  the  intention  to  commence 
action  against  the  enemy  must  hn  regarded  as  such  a  stratagem. 


612  INTERNATIONAL   LAW   CODiriED 

1681.  It  may  be  pennitted  to  the  commander  of  a  warship  to 
hoist  a  false  fiag  in  order  to  escape  the  surveillance  of  a  hostile 
ship  on  the  high  sea,  but  simulating  a  flag  when  an  attack  is  about 
to  be  commenced  must  be  held  a  deplorable  violation  of  the  laws 
of  war  and  of  military  honor. 

Such  is  the  case  also  when  the  flag  is  hoisted,  and  at  the  same 
time  a  gun  is  fired  to  assert  the  true  character  of  the  flag. 

The  French  decree  of  August  15,  1851,  rehiting  to  service  on  board  war 
vessels  provides  as  follows  in  article  121 : 

"Before  commencing  action,  the  commander  in  chief  shall  order  the  dis- 
tinctive signs  and  the  French  flag  to  be  hoisted.,on  all  ships.  In  no  case  must 
he  fight  under  a  false  flag.  In  night  engagements,  he  must  order  a  light  to 
be  placed  over  the  flag  astern." 

Similarly,  the  Austrian  regulations  (111,  n.  1476)  read  as  follows: 

"Before  commencing  fire,  the  national  colors  and  the  distinctive  signs  of 
the  command  must  be  hoisted.  In  night  engagements,  a  light  must  be  placed 
over  the  flag  astern." 

1682.  The  use  of  a  false  flag  by  a  war  vessel  can  never  be  legit- 
imate, not  even  as  a  reprisal,  in  cases  where  she  is  compelled  to 
hoist  her  own  flag. 

Conduct  contrary  to  military  honor  on  the  part  of  a  hostile 
ship  can  never  justify  the  adversary  in  acting  in  like  manner. 

This  rule  may  be  considered  as  leased  on  the  regulations  governing  the  laws 
of  war  drawn  up  by  the  Hague  Conference  of  1907,  article  23f  of  which  reads: 

"  It  is  especially  forbidden  to  tiiake  improper  use  .  .  .  of  the  national  flag, 
or  of  the  niilitary  insignia  and  uniform  of  Ike  enemy.   ...     " 

While  this  text  refers  to  war  on  land,  no  different  rule  should  be  admitted 
in  naval  war. 

1683.  It  must  similarly  be  regarded  as  absolutely  forbidden 
during  naval  war,  to  use  the  distinctive  signs  of  hospital  ships  es- 
tablished by  the  Hague  Convention  of  1907,  in  order  to  avoid  the 
vigilance  and  action  of  hostile  ships. 


'  TITLE  XIV 

RIGHTS  OF  A  BELLIGERENT  WITH   RESPECT  TO 
PERSONS  OF  THE  ENEMY  COUNTRY 

1684.  A  belligerent  may  declare  as  a  prisoner  of  war  any  person 
of  the  enemy  country  who  takes  part  in  the  war  and  falls  into  his 
power. 

Accordingly,  not  only  the  crews  of  war  vessels  shall  be  captured, 
but  also  those  of  the  volunteer  navy  and  privateers  duly  author- 
ized to  take  part  in  the  war. 

1685.  A  belligerent  shall  have  no  right  to  subject  to  the  laws  of 
war  private  non-combatants,  that  is  to  say,  those  who  do  not 
belong  to  the  armed  forces  and  do  not  take  any  part  in  the  hostili- 
ties, although  they  may  be  on  board  war  vessels  for  the  purpose  of 
fulfilhng  their  peaceful  mission.  Therefore,  it  shall  not  be  permis- 
sible to  capture  as  prisoners  of  war  physicians,  nurses  and  priests 
on  board  a  captured  enemy  vessel;  they  should  be  free  to  leave 
the  vessel  after  having  accomplished  their  mission  and  to  take 
away  with  them  all  their  personal  property. 

Compare  art.  10  of  the  Convention  of  October  18,  1907,  for  the  adaptation 
to  maritime  warfare  of  the  principles  of  the  Geneva  Convention. 

PASSENGERS   AND    CREWS    OF    CAPTURED    MERCHANT   VESSELS 

1686.  Persons  on  board  a  merchant  vessel  not  members  of  the 
crew  cannot  be  captured  and  declared  prisoners  of  war,  no  matter 
what  their  nationality  may  be,  except  when,  being  citizens  of  the 
hostile  state,  there  is  ground  to  believe  that  they  constitute  part 
of  the  armed  forces  or  are  called  upon  to  serve  in  the  army  or  in 
the  navy  of  their  country. 

1687.  The  crews  of  captured  enemy  merchant  ships  shall  al- 
ways retain  their  freedom,  and  it  shall  not  be  allowable,  even  by 
way  of  reprisal,  to  declare  the  members  of  the  crew  of  such  vessels 
prisoners  of  war,  except  when  they  have  been  guilty  or  suspected 
of  veritable  acts  of  hostility  or  of  lending  assistance  to  the  enemy. 

61.3 


614  INTERNATIONAL   LAW    CODIFIED 

The  belligerent  shall,  however,  be  .allowed  provisionally  to  de- 
tain the  captain,  owner,  pilot  and  any  other  person  whom  it  might 
be  necessary  to  examine  in  order  to  ascertain  the  facts  and  cir- 
cumstances, so  long  as  their  presence  shall  be  deemed  necessary  for 
the  preliminary  examination  into  the  case. 

1688.  The  belligerent  must  land  in  a  safe  and  hospitable  place 
all  members  of  the  crew  of  the  captured  enemy  merchant  ship 
whom  there  is  no  need  to  detain  conformably  to  the  foregoing  rule, 
and  provide,  in  so  far  as  circumstances  permit,  for  their  repatria- 
tion. It  shall  never  be  permissible  to  abandon  them  on  barren 
and  uninhabited  coasts,  nor  in  countries  where  their  hfe  and 
hberty  might  be  in  danger. 

These  rules,  already  proposed  in  the  preceding  editions  (rules  1307,  1308) 
are  opposed  to  customary  law  and  the  opinion  of  the  majority  of  authors.  In 
the  Prussian  regulations  of  1864,  it  is  provided  in  article  18:  "The  crew  of  a 
captured  ship  shall  be  maintained  at  the  expense  of  the  State  until  the  deci- 
sion of  the  case.  If  the  captured  ship  is  condemned,  the  citizens  of  the  hostile 
State  among  the  members  of  the  crew  shall  be  declared  prisoners  of  war." 
The  same  provision  is  found  in  article  20  of  the  French  instructions  of  1854. 

The  British  government  favors  the  same  custom  and  Lord  Palmerston 
used  to  say:  "If  Great  Britain  did  not  detain  as  prisoners  of  war  sailors  of 
the  hostile  country  taken  on  board  a  merchant  ship,  she  would  subsequently 
have  to  fight  them  on  board  hostile  war  vessels." 

Among  writers,  we  shall  mention  Ortolan,  Diplomalie  de  la  mer,  II,  pp.  35 
el  seq.,  Hautefeuille,  Di-oit  el  devoir  des  neuires,  Westlake,  in  Revue  de  droil  in- 
ternational, V.  VII,  p.  258;  Oppenheira,  Inlernalional  Law,  v.  II,  §§  201  and 
249. 

We  have  always  considered  war  upon  peaceful  commerce  as  a  veritable 
anomaly  (Fiore,  Diritlo  internazionale  pubblico,  §§  1503  el  seq.)  and  as  a  still 
greater  anomaly  the  subjection  to  the  laws  of  war  of  the  peaceful  citizens 
who  belong  to  the  crew  of  a  merchant  ship.  Compare  id.,  v.  Ill,  3d  ed., 
§  1759.  In  order  to  justify  the  capture  of  hostile  merchant  ships,  the  pre- 
text of  weakening  the  commercial  power  of  the  enemy  is  invoked.  But  how 
can  the  capture  as  prisoners  of  war  of  the  sailors  of  these  ships  be  justified? 
The  possibility  of  employing  them  on  war  vessels  is  alleged.  If  so,  all  enemy 
citizens  who  fall  into  the  power  of  a  belligerent  ought  to  be  declared  pris- 
oners of  war,  since  they  may  be  called  to  the  colors.  This  custom,  generally 
accepted,  is  contrary  to  the  general  principle  that  private  persons  who  do 
not  take  part  in  the  war  must  be  considered  as  not  involved  in  the  hostilities 
in  progress  between  the  states  of  which  they  are  citizens. 

Fortunately,  Convention  XI  of  the  General  Act  of  The  Hague  of  1907  has 
settled  the  question  conformably  to  more  correct  principles,  in  articles  5  and 
6,  which  read  as  follows: 

Art.  5. — "When  an  enemy  merchant  ship  is  captured  by  a  belligerent, 
such  of  its  crew  as  are  nationals  of  a  neutral  state  are  not  made  prisoners  of 
war. 

"  The  same  rule  applies  in  the  case  of  the  captain  and  oflBcers  likewise  na- 


RIGHTS    OF   BELLIGERENTS  615 

tionals  of  a  neutral  state,  if  they  promise  formally  in  writing  not  to  serve  on 
an  enemy  ship  while  the  war  lasts. 

"  Art.  6. — The  captain,  officers  and  members  of  the  crew,  when  nationals 
of  the  enemy  state,  are  not  made  prisoners  of  war,  on  condition  that  they 
make  a  formal  promise  in  writing  not  to  undertake,  while  hostilities  last,  any 
service  connected  with  the  operations  of  the  war." 


THE   SHIPWRECKED   AND   WOUNDED    IN   MARITIME   WAR 

1689.  It  is  incumbent  upon  all  states,  even  upon  those  which 
have  not  signed  or  adhered  to  the  Hague  Convention  of  1907  to 
consider  it  a  duty  under  the  principles  of  humanity  and  civiliza- 
tion, not  to  subject  to  the  laws  of  war  the  ships  and  craft  which, 
at  their  own  risk,  during  or  after  the  fight,  pick  up  shipwrecked 
persons  or  wounded  without  regard  to  nationahty,  but  to  regard 
such  vessels  as  neutral. 

1690.  Every  state  which  has  seized  a  war  vessel  fitted  out  as  a 
hospital  ship  with  wounded  and  sick  aboard,  must  deem  it  contrary 
to  mihtary  honor  and  to  its  dignity  to  divert  it  from  its  special  pur- 
pose and  to  subject  it  to  the  laws  of  war,  by  capturing  it  with  its 
hospital  material  and  declaring  the  sick  and  wounded  prisoners 
of  war.  It  must,  on  the  contrary,  allow  the  medical  corps  to  con- 
tinue to  discharge  its  duties  and  when  the  sick  and  wounded,  after 
having  been  tended  and  cured,  are  capable  of  resuming  their  mili- 
tary service,  must  allow  them  to  return  to  their  country,  provided 
they  give  their  parole  not  to  take  any  further  part  in  the  war, 

1691.  It  is  the  duty  of  the  states  which  have  signed  the  Hague 
Convention  of  October  18,  1907,  to  acknowledge  the  binding  legal 
force  of  the  rules  respecting  the  wounded,  the  sick  and  shipwrecked 
persons  in  maritime  war  and  to  carry  out  faithfully  all  the  stipu- 
lations of  that  convention  with  respect  to  persons  and  vessels  de- 
signed to  aid  and  assist  them. 

HOSPITAL   SHIPS  ACCORDING   TO   THE   HAGUE   CONVENTION   OF    1907 

1692.  Military  hospital  ships,  that  is  to  say,  ships  constructed  or 
assigned  by  states  specially  and  solely  with  a  view  to  assisting  the 
wounded,  sick  and  shipwrecked,  the  names  of  which  have  been  com- 
municated to  the  belligerent  powers  at  the  commencement  or  during  the 
course  of  hostilities,  and  in  any  case  before  they  are  employed,  shall  be 
respected  and  cannot  be  captured  while  hostilities  last. 


616  INTERNATIONAL   LAW    CODIFIED 

These  ships,  moreover,  are  not  on  the  same  footing  as  war  vessels  as 
regards  their  stay  in  a  neutral  -port.    {Art.  1.) 

We  reproduce  verbatim  the  articles  of  the  convention  concluded  by  the  states 
represented  at  The  Hague  at  the  second  Conference  of  1907.  It  sums  up  the 
wishes  of  philanthropists  and  scientists  as  regards  the  application  to  naval 
warfare  of  the  Geneva  Convention  of  August  22,  1864,  which  had  already 
been  declared  extended  to  such  warfare  by  the  first  Hague  Conference  of  1899. 
The  Convention  of  1907  is  much  more  complete  than  that  of  1899.  It  is  the 
tenth  convention  of  the  General  Act  of  The  Hague  and  constitutes  in  that 
respect  the  "common"  law  of  the  44  states  which  have  signed  it,  except  for 
certain  reservations  made  by  China,  Great  Britain,  Persia  and  Turkey. 

As  regards  other  states,  while  not  strictly  binding,  it  must  be  regarded  as 
the  most  complete  expression  of  the  principles  of  law  and  of  humanitarian 
sentiments,  which  no  government  can  with  impunity  violate;  it  ought  to  be 
declared  compulsory  at  the  beginning  of  every  war. 

This  convention  comprises  22  principal  articles:  the  others,  to  article  28, 
refer  to  ratification  and  adhesions.  We  affix  to  these  articles,  in  reproducing 
them,  the  consecutive  numbers  of  the  present  work,  indicating,  however,  at 
the  end  the  number  they  bear  in  the  convention. 

1693.  Hospital  ships,  equipped  wholly  or  in  part  at  the  expense 
of  private  individuals  or  officially  recognized  relief  societies^  shall  be 
likewise  respected  and  exempt  from  capture,  if  the  belligerent  Power 
to  whom  they  belong  has  given  them  an  official  commission  and  has 
notified  their  names  to  the  hostile  Power  at  the  commencement  of  or 
during  hostilities,  and  in  any  case  before  they  are  employed. 

These  ships  must  be  provided  with  a  certificate  from,  the  competent 
authorities  declaring  that  the  vessels  have  been  under  their  control  while 
fitting  out  and  on  filial  departure.     {Art.  2.) 

1694.  Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of 
private  individuals  or  officially  recognized  societies  of  neutral  coun- 
tries, shall  be  respected  and  exempt  from  capture,  on  condition  that 
they  are  placed  under  the  control  of  one  of  the  belligerents  with  the 
previous  consent  of  their  own  Government  and  with  the  authorization 
of  the  belligerent  himself,  and  that  the  latter  has  notified  their  names 
to  his  adversary  at  the  commencement  of  or  during  hostilities,  and  in 
any  case,  before  they  are  employed.     {Art.  3.) 

1695.  The  ships  ynentioned  in  Articles  1,  2,  and  3  shall  afford  relief 
and  assistance  to  the  wounded,  sick,  and  shipwrecked  of  the  belliger- 
ents without  distinction  of  nationality. 

The  Governments  undertake  not  to  use  these  ships  for  any  military 
purpose. 

These  vessels  must  in  no  wise  hamper  the  movements  of  the  com- 
batants. 


I 


RIGHTS    OF    BELLIGERENTS  617 

During  and  after  an  engagement  they  mill  act  at  their  own  risk  and 
peril. 

The  belligerents  shall  have  the  right  to  control  and  search  them; 
they  can  refuse  to  help  them,  order  them  off,  make  them  take  a  certain 
course,  and  put  a  commissioner  on  board;  they  can  even  detain  them, 
if  important  circumstances  require  it. 

As  far  as  possible,  the  belligerents  shall  enter  in  the  log  of  the  hos- 
pital ships  the  orders  which  they  give  them.    (Art.  4-) 

1696.  Military  hospital  ships  shall  be  distinguished  by  being 
painted  white  outside  with  a  honzontal  band  of  green  about  a  meter 
and  a  half  in  breadth. 

The  ships  mentioned  in  Articles  2  and  3  shall  be  distinguished  by 
being  painted  white  outside  with  a  horizontal  band  of  red  about  a 
meter  and  a  half  in  breadth. 

The  boats  of  the  ships  above  mentioned,  as  also  small  craft  which 
may  be  used  for  hospital  work,  shall  be  distinguished  by  similar  paint- 
ing. 

All  hospital  ships  shall  make  themselves  known  by  hoisting,  with 
their  national  flag ,  the  white  flag  with  a  red  cross  provided  by  the  Geneva 
Convention,  and,  further,  if  they  belong  to  a  neutral  State,  by  flying 
at  the  mainmast  the  national  flag  of  the  belligerent  under  whose  con- 
trol they  are  placed. 

Hospital  ships  which,  in  the  terms  of  Article  4,  are  detained  by  the 
enemy,  must  haul  down  the  national  flag  of  the  belligerent  to  whom 
they  belong. 

The  ships  and  boats  above  mentioned  which  insh  to  ensure  by  right 
the  freedom  from  interference  to  which  they  are  entitled,  must,  subject 
to  the  assent  of  the  belligerent  they  are  accompanying,  take  the  neces- 
sary measures  to  render  their  special  painting  sufficiently  plain. 
{Art.  5.) 

1697.  The  distinguishing  signs  referred  to  in  Article  5  can  only 
be  used,  whether  in  time  of  peace  or  war,  for  protecting  or  indicating 
the  ships  therein  mentioned.    {Art.  6.) 

1698.  In  the  case  of  a  fight  on  board  a  war-ship,  the  sick  wards 
shall  be  respected  and  spared  as  far  as  possible. 

The  said  sick  wards  and  the  ynateriel  belonging  to  them  remain  sub- 
ject to  the  laws  of  war;  they  cannot,  however,  be  used  for  any  pur- 
pose other  than  that  for  which  they  were  originally  intended,  so  long 
as  they  are  required  for  the  sick  and  wounded. 


618  INTERNATIONAL   LAW    CODIFIED 

The  commander,  however,  into  whose  power  they  have  fallen  mxiy 
apply  them  to  other  purposes,  if  the  military  situation  requires  it, 
after  seeing  that  the  sick  and  wounded  are  properly  provided  for. 
{Art.  7.) 

1699.  Hospital  ships  and  sick  wards  of  vessels  are  no  longer  en- 
titled to  protection  if  they  are  employed  for  the  purpose  of  injuring 
the  enemy. 

The  fact  of  the  staff  of  the  said  ships  and  sick  wards  being  armed  for 
maintaining  order  and  for  defending  the  sick  and  wounded,  and  the 
presence  of  wireless  telegraphy  apparatus  on  board,  is  not  a  sufficient 
reason  for  withdrawing  protection.    {Art.  8.) 

1700.  Belligerents  may  appeal  to  the  charity  of  the  commanders 
of  neutral  merchant  ships,  yachts,  or  boats  to  take  on  board  and  tend 
the  sick  and  wounded. 

Vessels  responding  to  this  appeal,  and  also  vessels  which  have  of 
their  own  accord  rescued  sick,  wounded  or  shipwrecked  men,  shall 
enjoy  special  protection  and  certain  immunities.  In  no  case  can 
they  be  captured  for  having  such  persojis  on  board,  but,  apart  from 
special  undertakings  that  have  been  made  to  them,  they  remain  liable 
to  capture  for  any  violations  of  neutrality  they  may  have  committed. 
{Art.  9.) 

1701.  The  religious,  medical,  and  hospital  staff  of  any  captured 
ship  is  inviolable,  and  its  members  cannot  be  made  prisoners  of  war. 
On  leaviyig  the  ship  they  may  take  away  with  them  the  objects  and 
surgical  instruments  which  are  their  own  private  property. 

This  staff  shall  continue  to  discharge  its  duties  while  necessary,  and 
can  afterwards  leave,  when  the  commander-in-chief  considers  it 
possible. 

The  belligerents  must  guarantee  to  the  said  staff,  when  it  has  fallen 
into  their  hands,  the  same  allowances  in  pay  which  are  given  to  the 
staff  of  corresponding  rank  in  their  own  navy.    {Art.  10.) 

1702.  Sailors  and  soldiers  on  board,  when  sick  or  wounded,  as  well 
as  other  persons  officially  attached  to  fleets  or  armies,  whatever  their 
nationality,  shall  be  respected  and  tended  by  the  captors.    {Art.  11.) 

1703.  Any  warship  belonging  to  a  belligerent  may  demand  that 
sick,  wounded,  or  shipwrecked  men  on  board  military  hospital  ships, 
hospital  ships  belonging  to  relief  societies  or  to  private  individuals, 
merchant  ships,  yachts,  or  boats,  whatever  the  nationality  of  these 
vessels,  should  be  handed  over.     {Aii.  12.) 


RIGHTS    OF   BELLIGERENTS  619 

1704.  If  sick,  wounded,  or  shipwrecked  persons  are  taken  on  hoard 
a  neutral  war-ship,  every  possible  precaution  must  he  taken  that  they 
do  not  again  take  part  in  the  operations  of  the  war.    {Art.  13.) 

1705.  The  shipwrecked,  wounded,  or  sick  of  one  of  the  belliger- 
ents ivho  fall  into  the  power  of  the  other  belligerent  are  prisoners  of 
war.  The  captor  must  decide,  according  to  circumstances,  whether 
to  keep  them,  send  them  to  a  port  of  his  own  country,  to  a  neutral 
port,  or  even  to  on  enemy  port.  In  this  last  case,  prisoners  thus  re- 
patriated cannot  serve  again  while  the  war  lasts.    (Art.  14-) 

1706.  The  shipwrecked,  sick,  or  wounded,  who  are  landed  at  a 
neutral  port  with  the  consent  of  the  local  authoiities,  must,  unless  an 
arrangement  is  made  to  the  cojitrary  between  the  neutral  state  and  the 
helligerent  states,  be  guarded  by  the  neutral  state  so  as  to  prevent  them 
from  again  taking  part  in  the  operations  of  the  war. 

The  expenses  of  tending  them  in  hospital  and  interning  them  shall 
be  home  by  the  state  to  which  the  shipuyrecked,  sick,  or  wounded  persons 
belong.     (Art.  15.) 

1707.  After  every  engagement,  the  two  belligerents,  so  far  as  mili- 
tary interests  perrnit,  shall  take  steps  to  look  for  the  shipwrecked, 
sick,  and  wounded,  and  to  protect  them,  as  well  as  the  dead,  against 
pillage  and  ill  treatmeyit. 

They  shall  see  that  the  bunal,  whether  by  land  or  sea,  or  crematioii 
of  the  dead  shall  he  preceded  by  a  careful  examination  of  the  corpse. 
(Art.  16.) 

1708.  Each  belligerent  shall  send,  as  early  as  possible,  to  the  au- 
thorities of  their  country,  navy  or  army  the  military  marks  or  docu- 
ments of  identity  found  on  the  dead  and  the  description  of  the  sick 
and  wounded  picked  up  by  him. 

The  belligerents  shall  keep  each  other  infoi'med  as  to  internments 
and  transfers  as  well  as  to  the  admissions  into  hospital  and  deaths 
which  have  occurred  among  the  sick  and  wounded  in  their  hands. 
They  shall  collect  all  the  objects  of  personal  use,  valuables,  letters, 
etc.,  which  are  found,  in  the  captured  ships,  or  ivhich  have  been  left 
by  the  sick  or  wounded  who  died  in  hospital,  in  order  to  have  them 
forwarded  to  the  persons  concerned  by  the  authorities  of  their  own 
cmmtry.     (Art.   17.) 

1709.  The  provisions  of  the  present  Convention  do  not  apply  except 
between  contracting  Powers,  and  then  only  if  all  the  belligerents  are 
parties  to  the  Convention.    (Art.  18. Y 


620  INTERNATIONAL   LAW    CODIFIED 

1710.  The  commander fi-in-chief  of  the  belligerent  fleets  must  see 
that  the  above  articles  are  properly  carried  out;  they  will  have  also  to 
see  to  cases  not  covered  thereby,  in  accordance  with  the  instructions 
of  their  respective  Governments  and  in  conformity  vrith  the  general 
principles  of  the  present  Convention.    (Art.  19.) 

1711.  The  signatory  Powers  shall  take  the  necessary  measures  for 
bringing  the  provisions  of  the  present  Convention  to  the  knowledge  of 
their  naval  forces,  and  especially  of  the  members  entitled  thereunder 
to  immunity,  and  for  making  them  known  to  the  public.    {Art.  20.) 

1712.  The  signatory  Powers  likewise  undertake  to  enact  or  to 
propose  to  their  legislatures,  if  their  criminal  laws  are  inadequate, 
the  measures  necessary  for  checking  in  time  of  war  individual  acts 
of  pillage  and  ill-treatment  in  respect  to  the  sick  and  wounded  in  the 
fleet,  as  well  as  for  punishing,  as  an  unjustifiable  adoption  of  naval 
and  military  marks,  the  unauthorized  use  of  the  distinctive  marks 
mentioned  in  Article  5  (rule  1696)  by  vessels  not  protected  by  the  pres- 
ent Convention. 

They  will  communicate  to  each  other,  through  the  Netherland  Gov- 
ernment, the  enactments  for  preventing  such  acts  at  the  latest  within 
five  years  of  the  ratification  of  the  present  Convention.    (Art.  21.) 

1713.  In  the  case  of  operations  of  war  between  the  land  and  sea 
forces  of  belligerents,  the  provisions  of  the  present  Convention  do  not 
apply  except  between  the  forces  actually  on  board  ship.    (Art.  22.) 

All  the  states  represented  at  The  Hague  have  subscribed  this  agreement, 
but  China  made  a  reservation  as  to  article  21  (rule  1712);  Great  Britain,  as 
to  arts.  6  and  21  (rules  1697,  1712),  and  with  a  declaration  that  article  12  (rule 
1703)  should  be  considered  as  limited  to  the  sole  case  of  combatants  rescued 
during  or  after  a  naval  engagement  in  which  they  have  taken  part;  Persia, 
under  reservation  of  the  right  to  use  the  Lion  and  Red  Sun  instead  of  the 
Red  Cross;  and  Turkey,  under, reservation  of  the  right  to  use  the  Red  Crescent. 


TITLE  XV 

THE   CAPTURE   OF   ENEMY   MERCHANT  SHIPS   AND 

CARGO 

INVIOLABILITY   OF   PRIVATE    PROPERTY 

1714.  According  to  proper  laws  of  war,  the  property  (ships  or 
cargo)  of  private  persons  of  the  enemy  state  should  be  deemed 
inviolable  in  naval  as  well  as  land  war,  and  it  is  the  duty  of  all 
civilized  states  to  make  this  rule  obligatory  through  a  conventional 
agreement,  by  declaring  enemy  merchant  ships  and  their  enemy 
cargoes  to  be  inviolable,  save  when  the  ships  clearly  perform  hostile 
acts  and  take  an  active  part  in  the  war  under  any  form  of  assist- 
ance to  the  enemy  fleet. 

It  is  a  great  mistake  and  anomaly  to  implicate  in  a  naval  war  private  per- 
sons not  involved  in  it,  while  the  opposite  doctrine  prevails  in  land  war.  It 
is  claimed  that  naval  war  cannot  attain  its  object  through  the  mere  destruc- 
tion of  the  naval  forces  of  the  enemy,  but  that  it  must  besides  ruin  his  eco- 
nomic and  commercial  power  by  attacking  his  shipping.  This  is  a  very  weak 
argument  for  attempting  to  justify  a  barbarous  practice.  How,  indeed,  by 
causing  actual  and  immediate  damage  to  private  persons,  could  the  economic 
and  commercial  power  of  the  State  be  weakened  during  the  course  of  hostilities? 

We  have  treated  this  question  in  detail  in  our  work  Trattato  di  Dirillo  inler- 
nanonale  pubblico,  v.  Ill,  3d  ed.,  chap.  X,  §  11,  pp.  195  et  seq. 

The  great  majority  of  writers  favor  the  doctrine  of  the  inviolability  of 
private  property  in  time  of  naval  war.  We  may  refer  to  the  very  complete 
bibliographical  notes  of  BonfiLs-Fauchille,  3d  ed.,§  12S1;  Oppenheim,  op.  cit., 
V.  II,  §§  173  and  ISO;  de  Boeck,  De  la  propiiele  privee  ennemie  .sows  pavilion 
ennemi.  See  also  the  proceedings  of  the  Institute  of  International  Law  at 
the  se.ssion  of  The  Hague  of  1875  and  of  Zurich  of  1877.  For  historical  par- 
ticulars, see,  Xys,  Drait  inlernalional,  k.s  principes,  les  Iheories,  les  fails,  v.  Ill, 
chap.  X ;  La  guerre  marilime  el  la  propriele  priree  ennemie  sous  pavilion  ennemi. 

This  doctrine  is  already  accepted  in  practice  by  the  most  civilized  states: 
it  is  expressly  sanctioned  in  some  treaties,  among  which  we  may  note  the 
treaty  concluded  between  Italy  and  the  United  States  on  February  22,  1871. 
It  is  to  be  hoped  that  public  opinion  will  succeed  in  overcoming  the  stubborn 
resistance  of  certain  countries,  among  which  Great  Britain  is  especially  no- 
torious, and  that  ultimately  an  international  agreement  will  proclaim  the  in- 
violability of  enemy  private  property  under  the  enemy  flag. 

At  the  first  Hague  Conference  of  1899,  the  question  of  the  inviolability  of 
private  property  was  ('(jiisidered;  but  the  states  represented  confined  theni- 
selves  to  expressing  the  desire  that  the  proposition  should  be  referred  for  ex- 

621 


022  INTERNATIONAL   LAW   CODIFIED 

amination  to  the  next  Conference.  The  question  was  again  called  up  in  1907, 
but  owing  to  serious  differences  of  opinion  and  conflict  of  the  respective  in- 
terests, it  was  not  discussed.  Nevertheless,  the  wish  was  expressed  that  the 
program  of  the  next  Conference  should  be  to  draw  up  regulations  of  the  laws 
of  naval  warfare,  among  which  is  comprised  our  proposal,  which  it  is  hoped 
states  will  finally  agree  to.  This  would  be  easy,  if  Great  Britain  would  give 
up  her  traditional  policy  in  the  matter  which  maintains  the  utility  of  destroy- 
ing maritime  commerce  during  war  and  adopt  the  opinion  of  British  jurists, 
who  themselves  disapprove  it.  See  the  important  article  of  Hall  in  the  Con- 
temporary  Review,  v.  XXVI,  pp.  735  et  seq. 

[For  an  illuminating  account  l)y  Harold  Scott  Quigley  of  the  traditional 
policy  of  the  United  States  in  favor  of  the  immunity  from  capture  of  private 
property  at  sea,  cf.  11  Amer.  Journ.  of  Int.  Law  (1917),  pp.  820-838. — 
Transl.] 

CAPTURE  ACCORDING  TO  THE  PRESENT  CUSTOMS  OF  NAVAL  WARFARE 

1715.  According  to  the  present  abnormal  custom  of  naval  war- 
fare, it  is  to  be  regarded  as  lawful  for  belligerents  to  seize  enemy 
merchant  ships  and  the  enemy  cargo  on  board,  and  to  exercise 
the  right  of  capture  with  the  purpose  of  confiscating  both  ship  and 
cargo,  since  under  the  laws  and  customs  actually  governing  the 
matter,  the  competent  tribunal  may  declare  the  capture  lawful 
and  the  prize  vahd. 

CHARACTERISTICS    OF   THE    RIGHT   OF    CAPTURE 

1716.  The  right  of  capture  as  now  admitted  according  to  the 
abnormal  usages  of  naval  warfare,  must  be  considered  as  an  ex- 
ceptional right,  in  derogation  of  "common"  law. 

It  should,  therefore,  be  considered  in  principle  subject  to  re- 
strictions likely  to  be  favorable  to  those  against  whom  it  is  invoked, 
rather  than  to  greater  extensions  with  a  view  to  supporting  the 
pretensions  of  the  belligerent  who  seeks  to  appropriate  and  con- 
fiscate the  prize. 

1717.  Any  arbitrary  exercise  of  the  right  of  capture,  although 
it  is  sought  to  justify  it  on  the  pretext  of  reprisals  or  reciprocity, 
must  be  considered  as  contrary  to  the  true  laws  of  war. 

WHEN  CAN  THE  RIGHT  OF  CAPTURE  BE  EXERCISED? 

1718.  The  right  of  capture  can  only  be  exercised  after  a  formal 
declaration  of  war  and  the  opening  of  hostilities. 

Hostile  merchant  ships  which  happen  to  be  in  the  ports  of  a 


CAPTURE   OF  ENEMY   MERCHANT  SHIPS  AND   CARGO  t)23 

belligerent  when  hostilities  break  out  or  which,  having  left  their 
last  port  before  the  commencement  of  the  war,  have  entered  a 
hostile  port  not  knowing  that  a  state  of  war  existed,  ought  not  to 
be  subject  to  capture  and  confiscation,  but  should  be  given  a  safe 
conduct  for  proceeding  to  their  port  of  destination,  as  soon  as 
they  can  be  allowed  to  depart  without  prejudice  to  the  exigencies 
of  war. 

It  is  the  duty  of  belHgerents  to  consider  as  obligatory,  and  not 
merely  as  desirable,  the  non-application  of  the  exceptional  right 
of  naval  warfare,  which  legitimates  capture,  to  merchant  ships 
which  hav.e  entered  their  ports  under  the  protection  of  the  "com- 
mon" law  in  force  in  time  of  peace. 

Compare  rules  1448  el  seq. 

This  principle  may  be  regarded  as  accepted  under  customary  law.  France 
and  Great  Britain  acted  accordingly  during  the  war  of  1854  with  respect  to 
Russian  ships  which  were  in  French  or  British  ports  or  were  bound  thereto, 
and  gave  them  a  time  hmit  within  which  to  seek  safety.  The  same  procedure 
was  adopted  by  Prussia  in  1866,  by  Russia  and  Turkey  in  1877,  by  the  United 
States  in  1898,  and  finally  by  Russia  and  Japan  in  1904.  We  do  not  know 
why  the  Conference  of  1907  was  satisfied  with  declaring  merely  as  desirable 
what  it  should  have  considered  as  an  absolute  duty.  See  article  I  of  the  Con- 
vention given  as  a  note  under  rule  1450. 

WHO   MAY   EXERCISE   THE   RIGHT   OP   CAPTURE   AND    WHERE 

1719.  The  right  to  capture  enemy  merchant  ships  belongs  to 
the  war  vessels  of  the  belligerents  and  to  the  vessels  attached  to 
the  fleet  and  authorized  to  exercise  the  right  of  war. 

In  cases  where  the  fitting  out  of  privateers  may  be  regarded  as 
duly  authorized,  the  right  to  capture  private  merchandise  under 
the  enemy  flag  shall  similarly  belong  to  privateers  to  which  the 
belligerent  sovereign  has  granted  letters  of  marque,  subject  to 
the  conditions  imposed  by  those  letters. 

1720.  A  merchant  vessel  attacked  by  an  enemy  war  vessel  or 
l)iivateer  may  always  defend  itself  by  everj^  means  and  if  it  should 
succeed  in  capturing  the  ship  which  attacked  it,  it  may  claim  the 
right  of  prize  capture. 

1721.  The  right  of  prize  capture  may  be  exercised  in  the  ter- 
ritorial waters  of  the  belligerents  and  on  the  high  sea.  It  cannot 
be  exercised  in  the  territorial  waters  of  neutral  Powers,  nor  in 
neutralized  waters. 


624  INTERNATIONAL  LAW  CODIFIED 

A  belligerent  may,  however,  continue  in  those  waters  against 
an  enemy  merchant  ship  an  attack  and  pursuit  for  purpose  of 
capture  which  had  commenced  on  the  high  sea  and  had  been 
prosecuted  without  interruption. 

OBJECT   OF   CAPTURE 

1722.  A  belhgerent  may  properly  exercise  the  right  of  capture: 
(a)  With  respect  to  an  enemy  merchant  ship; 

(6)  With  respect  to  merchandise  loaded  on  board  an  enemy 
merchant  ship,  if  the  owner  of  the  merchandise  can  be  considered 
an  enemy. 

WHEN   A   MERCHANT   VESSEL   MAY   BE   REGARDED   AS   AN   ENEMY 

1723.  The  nationality  of  a  vessel  as  ascertained  by  the  ship's 
papers  and  by  the  flag  it  has  a  legal  right  to  fly,  must  determine  its 
legal  status  as  an  enemy  or  not. 

1724.  The  nationality  of  the  ship's  owners  cannot  have  any  in- 
fluence at  the  time  when  the  belligerent,  in  conformity  with  exist- 
ing usages,  exercises  his  right  to  seize  a  vessel  then  entitled  to  fly 
the  enemy  flag.  If  the  ship,  however,  belongs  partly  to  citizens 
of  neutral  countries,  that  fact  ought  to  be  taken  into  account  in 
the  legal  proceedings  relating  to  the  validity  of  the  prize. 

Our  rule  would  apply  to  a  ship  which,  carrying  the  enemy  flag,  belongs 
wholly  or  in  part  to  neutrals  who  prove  beyond  doubt  their  right  of  ownership. 

Considering  that,  in  principle,  the  right  of  capture  must  be  regarded  as  an 
exceptional  right,  whose  scope  should  be  restricted  rather  than  extended,  it 
follows  that  when  a  ship  belongs  wholly  or  in  part  to  a  neutral,  a  belligerent 
cannot  confiscate  it  to  his  profit.  The  opposite  principle  is  adopted  by  the 
courts,  and  was  especially  sanctioned  by  the  judgment  of  the  French  Prize 
Court  of  December  22,  1870,  in  the  Turner  case,  which  states  that  from  the 
viewpoint  of  the  right  of  capture,  the  ownership  of  the  vessel  is  wholly  in- 
divisible, and  that  neutral  citizens,  co-owners  of  the  ship,  cannot  claim  against 
the  captor  their  share  of  property  in  a  vessel  navigating  under  the  enemy 
flag.  This  decision  is  based  upon  a  conception  opposite  to  ours,  which  in  fact 
deems  it  necessary  not  to  restrict  but  to  extend  the  right  of  capture.  (Compare 
rule  1716.) 

The  opposite  view  was  taken  with  more  reason  in  the  case  of  the  ship  La 
Palme,  during  the  Franco-German  war.  That  vessel,  which  carried  the  Ger- 
man flag,  was  seized,  although,  in  fact,  belonging  to  the  Mission  Society  of 
Basel.  The  Prize  Court  had  condemned  the  ship,  but  the  Council  of  State 
reversed  the  decision  on  the  ground  that  for  Swiss  owners  of  vessels,  naviga- 
tion under  a  foreign  flag  is  a  case  of  necessity,  since  Switzerland  has  no  mari- 
time flag.    Rivier,  Droit  des  gens,  II,  p.  345. 


CAPTURE    OF   ENEMY    MERCHANT    SHIPS   AND    CARGO  625 

(Municipal  law  furnishes  the  test  of  title  to  fly  the  flag.  In  the  United 
States,  it  is  ownership  by  American  citizens. — Transl.] 

1725.  Any  vessel  duly  flying  the  enemy  flag  may  be  regarded 
as  an  enemy,  in  determining  the  legality  of  the  seizure  or  the  obli- 
gation to  make  compensation. 

On  the  other  hand,  in  order  to  determine  the  validity  of  the  prize, 
it  is  necessary  to  ascertain  the  essential  fact  of  the  legal  status  of 
the  owners  of  the  ship  and  of  the  cargo. 

1726.  A  belligerent  cannot  regard  as  an  enemy  and  seize  as 
such  a  vessel  navigating  under  a  neutral  flag,  although  the  prop- 
erty'' of  a  citizen  of  the  enemy  state  before  or  even  after  the  out- 
break of  the  war,  if  it  was  really  sold  to  a  neutral,  and  it  so  appears 
clearly  from  the  ship's  papers,  so  as  to  exclude  all  possibility  of 
doubt  as  to  the  transfer  of  ownership. 

When  the  sale  of  a  merchant  vessel  belonging  to  a  citizen  of  the  enemy  state 
is  made  to  a  citizen  of  a  neutral  state,  either  prior  to  or  after  the  outbreak  of 
the  war,  and  while  in  transit,  the  belligerent  cannot  disregard  the  effects  of 
the  transfer  of  property,  which  is  lawful  in  time  of  war. 

Perels  quotes  the  report  of  the  Attorney-General  of  the  United  States,  who 
said :  "Neutrals  have  the  right  to  purchase  the  property  of  belligerents,  whether 
ships  or  any  other  thing,  during  war,  and  any  rule  of  any  one  state  in  op- 
position to  this  principle,  which  is  conformable  to  the  rules  of  international 
law,  must  be  held  contrary  to  public  law  and  in  pure  derogation  to  the  sovereign 
authority  of  every  sovereign  state."  Opinion  of  May,  1855,  in  Soether's 
Recueil,  nouv.  serie,  I,  n.  156  and  of  August  7,  1854,  II,  n.  182,  given  by  Perels, 
op.  cit.,  §  36.  Compare,  Holland,  Prize  Law,  §  19,  and  Oppenheim,  op.  cit.,  II, 
§  199. 

Of  course,  the  whole  proposition  is  based  upon  the  fact  that  the  bill  of  sale 
is  bona  fide  and  that  property  was  really  transferred  without  reservation  to 
the  neutral  so  as  to  exclude  any  element  of  fraud  from  the  sale. 

[While  the  law  of  the  United  States  and  of  Great  Britain  is  in  accord  with 
that  of  the  vast  majority  of  states  to  the  effect  that  a  sale  of  a  vessel  after  the 
outbreak  of  war,  from  a  belligerent  citizen  to  a  neutral,  if  bona  fide  and  ir- 
revocable, is  valid,  France  is  still  numbered  among  the  few  countries  which 
regard  such  a  sale  as  ipso  facto  void,  its  law  being  therefore  opposed  to  the 
general  rule,  which  is  approved  by  Fiore.  See  the  case  of  The  Dacia,  captured 
by  France,  March  1,  1915. — Transl.) 


NATIONAL   SHIPS   CAPTURED    BY   THE   ENEMY   AND   RETAKEN 

1727.  A  belligerent  has  no  right  to  consider  as  an  enemy  vessel 
a  national  merchant  ship  captured  by  the  other  belligerent,  and 
retaken  by  him  before  a  Prize  Court  has  passed  on  the  ownership 
of  the  vessel  and  condemned  it  as  enemy  property. 


626  INTERNATIONAL   LAW    CODIFIED 

1728.  A  national  merchant  ship  captured  by  the  enemy,  even 
if  taken  by  him  to  his  ports,  when  retaken  by  a  national  war  vessel, 
must  be  restored  to  its  owner  without  subjecting  him  to  the  pay- 
ment of  any  indemnity. 

When  retaken  by  a  privateer  duly  commissioned,  the  owner 
could  be  made  to  pay  compensation  to  the  privateer. 

It  can  never  be  considered  as  enemy  property  nor  subject  to 
the  same  rules  as  an  enemy  ship  captured  by  a  privateer. 

The  Italian  Merchant  Marine  Code  provides  as  follows  in  article  221 : 
"A  national  or  foreign  merchant  ship  chartered  by  the  State,  which  has 
been  retaken  by  a  war  vessel  after  having  fallen  into  the  power  of  the  enemy, 
shall  be  restored  to  the  owner,  who  shall  not  be  subject  to  any  payment  of 
compensation. 

"If  the  chartered  ship  has  been  retaken  by  a  national  merchant  ship,  the 
latter  shall  receive  a  reward  to  be  paid  out  of  the  State  Treasury,  equal  to  a 
fourth  or  sixth  part  respectively  of  the  property  recovered,  according  to  the 
various  cases  contemplated  in  the  first  part  of  article  219." 

WHEN   IS    MERCHANDISE   TO    BE   CONSIDERED   ENEMY? 

1729.  All  merchandise  loaded  on  board  a  merchant  ship  duly 
flying  the  flag  of  the  enemy  state  must  be  considered  as  enemy 
cargo  and  as  such  subject  to  the  right  of  prize  capture,  provided 
it  is  the  property  of  a  person  who,  by  his  legal  status,  must  be 
regarded  as  a  subject  of  the  enemy  state. 

1730.  Merchandise  belonging  to  a  neutral  when  taken  on  board 
an  enemy  ship  consigned  to  a  person  who,  by  his  legal  status,  must 
be  deemed  a  citizen  of  the  enemy  state,  may  be  subject  to  the  right 
of  prize  capture  as  enemy  property,  when  the  transfer  of  owner- 
ship of  the  merchandise  may  be  considered  as  having  taken  place 
at  the  time  of  shipment  but  not  if  the  transfer  of  title  occurs  on 
delivery  at  the  place  of  destination. 

Such  determination  of  ownership  may  in  a  certain  measure  de- 
pend upon  whether  the  merchandise  shipped  travels  at  the  risk 
and  peril  of  the  shipper  or  the  consignee. 

The  general  principle  res  peril  dominio  may  as  a  rule  be  applied ;  but  the  cir- 
cumstance of  the  risk  cannot  always  be  decisive  in  determining  ownership.  It 
may  happen  that  the  seller  has  assumed  the  risks  even  of  things  which  have 
become  the  property  of  the  consignee.  It  is  necessary,  therefore,  to  examine 
the  contract  in  order  completely  to  settle  the  matter,  which  may  have  an 
influence  on  the  decision  as  to  the  validity  of  the  prize.  As  regards  seizure, 
it  may  be  admitted  that  a  belligerent  has  the  right  to  seize  as  enemy  property 
all  merchandise  consigned  to  a  national  of  the  enemy  state. 


CAPTURE   OF   ENEMY    MERCHANT   SHIPS   AND    CARGO  627 

ENEMY    CHARACTER   OF   SHIP   AND    MERCHANDISE 

1731.  A  belligerent  may  assimilate  to  an  enemy  vessel  any  ship, 
of  whatever  nationality  and  flag,  which  takes  part  in  the  war  by 
performing  acts  of  hostility  and  by  lending  assistance  to  his  ad- 
versary. 

He  may  therefore  apply  to  it  and  to  the  merchandise  on  board 
belonging  to  its  owner  or  charterer,  the  laws  and  customs  of  war 
appHcable  to  enemy  ships. 

Albericus  Gentilis  held  that  any  ship  ought  to  be  considered  as  an  enemy 
which  becomes  so  of  its  own  accord.  In  undertaking  to  indicate  when  for- 
eigners (neutrals)  may  be  regarded  as  enemies,  he  said:  "It  is  necessary  to 
bear  in  mind  the  cause  of  the  act,  and  as  regards  the  foreigner  (neutral),  it 
must  be  ascertained  that  he  does  not  do  anything  likely  to  be  of  advantage 
to  the  enemy,  which  would  make  an  enemy  of  himself  not  unlike  any  other 
who  might  help  the  enemy.  Any  one  must  be  considered  as  an  enemy  who 
does  what  pleases  the  enemy,  and  furnishes  his  army  with  things  necessary  for 
war.  .  .  .  Any  one  helps  the  enemy  who  by  his  co-operation  makes  him 
bolder.  That  can  be  said  of  the  Hanseatic  ships  supplying  the  Spaniards 
with  provisions  and  other  war  supplies."  Albericus  Gentilis,  De  jure  belli, 
cap.  XXII,  no.  5.     See  the  Italian  translation  of  Fiorini,  p.  353. 

Everybody  must  recognize  that  in  this  quotation  of  Albericus  Gentilis, 
written  before  Grotius,  is  found  in  condensed  statement  the  true  doctrine  of 
neutrality.  Those  who  have  not  read  the  remarkable  work  of  our  country- 
man should  not  fail  to  do  so  in  order  to  give  him  the  credit  he  deserves. 

SHIPS   AND   PROPERTY   EXEMPT   FROM    CAPTURE 

1732.  All  the  states  which  have  subscribed  the  Paris  treaty  of 
1856  or  have  adhered  thereto  must  consider  themselves  legally 
bound  not  to  exercise  the  right  of  capture  in  regard  to  neutral 
ships  and  neutral  merchandise  on  board  a  captured  enemy  ship 
nor  in  regard  to  enemy  property  on  board  a  neutral  ship,  and  to 
consider  the  neutral  ship  and  merchandise  and  enemy  merchandise 
on  board  a  neutral  ship,  as  inviolate,  except  when  the  neutral 
ship  is  found  guilty  of  violating  a  blockade  or  when  the  mer- 
chandise carried  may  be  regarded  as  contraband  of  war. 

The  basis  of  our  rules  is  the  declaration  signed  by  the  states  represented  at 
Paris,  which  is  an  integral  part  of  the  treaty  concluded  between  them  on 
March  30,  1856: 

"2.  The  neutral  flag  covers  enemy  goods,  excepting  only  contraband  of  war; 

"3.  Neutral  goods  cannot  be  confiscated  on  board  an  enemy  vessel,  except- 
ing only  contraband  of  war." 

1733.  As  regards  the  states  not  signatory  to  the  treaty  nor  ad- 


628  INTERNATIONAL   LAW   CODIFIED     . 

hering  to  it,  the  two  rules  established  by  the  Declaration  of  1856 
must  be  regarded  as  expressing  rational  principles  of  law,  and  they 
must  be  recognized  as  having  the  binding  force  assigned  to  any 
rule  of  natural  justice. 

In  fact,  it  is  to  be  regarded  as  conformable  to  the  general  principles  of  law, 
not  to  be  able  to  accomplish  any  act  of  hostility  on  neutral  territory;  to  con- 
sider a  ship  as  a  dependency  of  the  state  to  which  it  belongs,  and  consequently 
to  have  no  right  to  capture  enemy  goods  which  happen  to  be  on  a  neutral 
ship;  nor  to  have  the  right  to  implicate  neutrals  in  the  war  by  applying  to 
them  the  laws  of  war  applicable  to  the  enemy. 

1734.  Boats  exclusively  employed  in  coast  fishing  or  in  minor 
local  navigation,  together  with  their  rigging,  tackle,  appliances 
and  cargo,  shall  be  considered  as  exempt  from  capture,  according 
to  the  rules  of  "common "  law  and  those  established  by  the  second 
Hague  Conference  of  1907. 

This  exemption  shall  cease  as  soon  as  they  participate  in  hos- 
tilities in  any  manner  whatever. 

The  contracting  states  must  agree  not  to  take  advantage  of  the 
harmless  character  of  these  ships  in  order  to  use  them  for  military 
purposes  while  preserving  their  pacific  appearance. 

1735.  Similarly,  ships  employed  in  religious,  scientific  or  philan- 
thropic missions  are  exempt  from  capture. 

The  two  preceding  rules  reproduce  articles  3  and  4  of  Convention  XI  of 
the  General  Act  of  The  Hague  of  1907  respecting  certain  restrictions  upon  the 
exercise  of  the  right  of  capture  in  naval  warfare. 

Hospital  ships  and  those  engaged  in  receiving  the  wounded  and  shipwrecked 
must  be  considered  as  engaged  in  a  philanthropic  mission.  Such  ships  are 
exempt  from  capture  on  the  part  of  the  states  which  have  signed  the  Hague 
Convention  of  1907. 

Compare  rules  1692  el  seq. 


PROPER    RESTRICTIONS     UPON    THE    EXERCISE    OF    THE    RIGHT    OF 

CAPTURE 

1736.  It  is  the  duty  of  belligerents  not  to  subject  to  the  laws  of 
war  enemy  ships  which  touch  their  coasts  owing  to  a  forced  entry 
or  shipwreck. 

It  must  always  be  deemed  contrary  to  the  principles  of  humanity, 
natural  justice  and  equity  to  take  advantage  of  disasters  of  the 
sea  in  order  to  subject  to  the  rigors  of  the  laws  of  war  those  who 
have  with  difficulty  been  able  to  escape  the  dangers  of  the  sea. 


CAPTURE    OF   ENEMY    MERCHANT   SHIPS    AND    CARGO  620 

All  writers  do  not  admit  this  rule:  Among  those  favorable  to  it,  we  find 
Bluntschli,  rule  668;  Boeck,  no.  198;  Gessner,  p.  14;  Calvo,  §  2374.  Among 
those  who  reject  it  are:  Hall,  §  145;  Masse,  v.  1,  no.  363;  Ortolan,  p.  321; 
Perels,  §  37,  Oppenheira,  §  189;  Dupuis,  no.  156. 

1737.  The  right  of  capture  must  not  be  exercised  with  respect 
to  ships  flying  a  flag  of  truce  and  charged  with  carrying  to  the 
enemy  a  cartel  or  conveying  communications;  the  rules  governing 
flags  of  truce  in  war  on  land  must  be  applied  to  them,  subject  to 
the  same  conditions. 

Compare  rules  1500  et  seq. 

1738.  The  right  of  capture  must  be  considered  as  legally  limited 
with  respect  to  states  which,  by  treaty,  have  undertaken  in  case 
of  war  to  abstain  from  exercising  the  right  among  themselves. 

This  rule,  however,  would  no  longer  be  applicable  in  case  of 
participation  in  the  war  by  other  states  which  have  not  signed 
such  a  treaty  and  have  not,  when  war  commenced,  undertaken 
to  comply  with  its  provisions. 

This  conventional  restriction  upon  the  right  of  capture  is  found  in  the 
treaty  concluded  February  28,  1871,  between  Italy  and  the  United  States: 

"Art.  12. — The  high  contracting  parties  agree,  that  in  the  unfortunate 
event  of  a  war  between  them,  the  private  property  of  their  respective  citizens 
and  subjects,  with  the  exception  of  contraband  of  war,  shall  be  exempt  from 
capture  or  seizure  on  the  high  seas  or  elsewhere,  by  the  armed  vessels  or  by 
the  military  forces  of  either  party;  it  being  understood  that  this  exemption 
shall  not  extend  to  vessels  and  tlieir  cargoes  which  may  attempt  to  enter  a 
port  blockaded  by  the  naval  forces  of  either  party." 

1739.  Similarly,  the  right  of  capture  shall  be  considered  as 
legally  restricted  between  states  which,  when  war  breaks  out, 
formally  undertake  reciprocally  to  abstain  from  exercising  such 
right  in  the  course  of  hostilities. 

There  is  a  very  important  provision  on  this  subject  in  the  Italian  Merchant 
Marine  Code,  articles  211  and  212  of  which  read  as  follows: 

"Art.  211. — The  capture  and  seizure  of  the  merchant  ships  of  a  hostile 
nation  by  the  war  vessels  of  the  State  shall  be  abolished  by  way  of  reciprocity 
with  respect  to  Powers  which  shall  adopt  the  same  treatment  in  favor  of  the 
national  merchant  marine. 

"  Treatment  by  reciprocity  may  originate  in  local  laws,  diplomatic  conven- 
tions, or  declarations  made  by  the  enemy  before  the  outbreak  of  hostilities. 

"  Art.  212. — Capture  and  confiscation  on  account  of  contraband  of  war 
shall  be  excepted  from  the.  provisions  of  the  preceding  article;  in  such  case, 
the  offending  ship  shall  be  subject  to  the  treatment  of  neutral  ships  violating 
neutrality. 

"Capture  and  confisciation  for  runtiiiig  an  effective  and  declared  blockade 
shall  likewise  be  excepted  from  the  above  provision," 


630  INTERNATIONAL   LAW    CODIFIED 

Under  these  provisions,  Italy  is  bound  toward  other  states  to  regard  as 
inviolable  the  private  property  of  all  belligerent  Powers  which  have  declared, 
before  the  outbreak  of  hostilities,  their  intention  of  abstaining  from  capturing 
the  private  property  of  Italian  citizens. 


MAIL    STEAMERS    AND    CORRESPONDENCE 

1740.  It  is  to  be  considered  as  highly  desirable  that  civilized 
states  should  determine  by  common  agreement  that  private  ships 
engaged  in  postal  service  between  belligerent  states  and  between 
them  and  neutral  states  shall  be  neutralized  and  subject  to  the 
same  rules  as  the  ships  of  neutrals,  so  far  as  the  exercise  of  the  rights 
of  war  are  concerned. 

Should  the  belligerent  deem  it  advisable,  however,  to  interrupt 
ordinary  postal  service  between  certain  countries,  the  right  to  do 
so  through  a  previous  declaration  should  not  be  denied  to  him. 
In  such  case,  mail  steamers  should  always  be  allowed  freely  to 
return  to  their  country,  and  the  laws  of  war  ought  to  be  applied 
only  to  such  of  them  as  may  subsequently  have  violated  the  pro- 
hibition to  continue  mail  service. 

Immunity  for  mail  steamers  in  time  of  w^ar  is  stipulated  in  treaties  con- 
cluded between  certain  states.  Thus,  article  4  of  the  postal  convention  of 
June  26,  1846,  between  Great  Britain  and  Denmark  reads  as  follows:  "In 
the  event  of  war  between  Great  Britain  and  Denmark,  mail  carrying  ships 
shall  be  free  to  continue  their  navigation  without  hindrance  or  annoyance,  so 
long  as  due  notice  shall  not  have  been  given  by  either  one  of  the  two  govern- 
ments that  the  service  is  to  be  suspended,  in  which  case  they  shall  be  allowed 
free  return,  under  special  protection,  to  their  country." 

A  similar  clause  is  found  in  article  17  of  the  postal  convention  of 
1833  between  France  and  Great  Britain. 

1741.  With  respect  to  the  states  represented  at  the  Hague  in 
1907,  the  following  rules  which  they  have  adopted  in  common 
agreement  must  be  regarded  as  legally  binding: 

The  postal  correspondence  of  neutrals  or  belligerents,  whatever  its 
official  or  private  character  may  he,  found  on  the  high  seas  on  board 
a  neutral  or  enemy  ship,  is  inviolable.  If  the  ship  is  detained,  the 
correspondence  is  forwarded  by  the  captor  with  the  least  possible  delay. 

The  provisions  of  the  preceding  paragraph  do  not  apply,  in  case 
of  violation  of  blockade,  to  correspondence  destined  for  or  proceeding 
from  a  blockaded  port.    (Art.  1.) 

The  inviolability  of  postal  correspondence  does  not  exempt  a  neutral 


CAPTURE   OF    ENEMY    MERCHANT    SHIPS    AND   CARGO  631 

mail  steamer  from  the  laws  and  customs  of  mantime  war  as  to  neu- 
tral merchant  ships  in  general.  The  ship,  however,  may  not  be  searched 
except  when  absolutely  necessary,  and  then  only  with  as  much  con- 
sideration and  expedition  as  possible.    {Art.  2.) 

These  are  articles  1  and  2  of  convention  XI  of  the  General  Act  of  the  second 
Hague  Conference. 


CAPTURE    IN   RELATION   TO   THE    RIGHT   OF   PRIZE 

1742.  The  capture  or  seizure  of  an  enemy  merchant  ship  and 
of  the  enemj''  goods  on  board,  when  it  may  be  considered  as  prop- 
erly effected  according  to  the  laws  and  customs  of  war,  must  always 
be  deemed  provisional  and  cannot  have  the  effect  of  giving  to  the 
belligerent  the  right  to  appropriate  the  captured  ship  and  goods.  It 
must  be  considered  as  indispensable  for  that  purpose  to  obtain 
from  a  competent  court  a  judgment  sanctioning  the  validity  of  a 
capture  and  of  the  prize,  in  conformity  with  the  rules  respect- 
ing the  lawfulness  of  maritime  prizes  set  forth  hereafter. 

OCCUPATION   OF   MARITIME   TERRITORY   AND    ITS   EFFECTS 

1743.  Occupation  of  maritime  territories,  that  is  to  say,  of 
gulfs,  bays,  ports,  and  territorial  waters,  is  not  possible  except 
where  continental  territory  is  occupied.  In  that  case,  the  occupa- 
tion shall  always  be  subject  to  the  laws  and  customs  of  war  on 
land. 


TITLE  XVI 
CONVENTIONS  GOVERNING  WAR 

WHO   MAY   CONCLUDE    CONVENTIONS   GOVERNING   WAR 

1744.  The  name  convention  of  war  is  given  to  conventions 
concluded  between  belligerents  to  regulate  any  act  or  relation 
existing  between  them  in  time  of  war. 

1745.  Conventions  providing  for  the  general  interests  of  armies 
and  regulating  the  exercise  of  the  reciprocal  rights  of  belligerents 
in  time  of  war  can  only  be  concluded  validly  by  the  supreme 
authority  in  the  State. 

The  military  commanders  of  the  two  belligerent  armies  can 
only  conclude,  within  the  limits  of  their  powers,  conventions  pro- 
viding for: 

(a)  The  necessities  of  the  armies  under  their  authority; 

(6)  Matters  which  may  concern  eventual  or  temporary  military 
interests  relating  to  operations  of  war. 

Conventions  of  this  kind  relate  particularly  to  the  reception 
of  flags  of  truce,  the  exchange  of  prisoners,  and  the  burial  of  the 
dead;  suspension  of  hostihties,  armistices,  capitulations  and 
agreements  of  any  kind  for  the  purpose  of  providing  for  the  even- 
tual necessities  of  war  and  having  for  their  object  certain  well- 
defined  military  interests. 

1746.  Every  convention  of  war  must  be  scrupulously  re- 
spected b}^  belligerents  and  executed  with  integrity  and  in  good 
faith. 

It  shall  be  considered  as  contrary  to  military  honor  to  violate 
promises  made  to  the  enemy  and  agreements  concluded  verbally. 

Our  countryman  Albericus  Gentilis  treats  of  conventions  of  war  in  chapters  X 
and  following  of  book  II  of  his  De  jure  belli  and  says:  "In  any  war  many 
things  are  done  by  means  of  arms  but  quite  a  number  by  means  of  compacts 
and  conventions,"  and  he  expounded  the  principles  which  ought  to  govern 
the  value  of  agreements  between  belligerents  respecting  truce,  safe-conduct, 
the  redemption  of  prisoners  and  hostages. 

632 


CONVENTIONS    GOVERNING    WAR  633 


SUSPENSION    OF   ARMS 


1747.  Suspension  of  arms  consists  in  the  interruption,  for  a  pur- 
pose of  general  interest,  of  war  operations  for  a  fixed  and  very- 
limited  period  (a  few  hours  or  at  most  a  few  days)  in  a  particular 
place. 

This  ma}^  include  the  temporary  cessation  of  hostilites  to  bury 
the  dead  on  the  field  of  battle;  to  effect  an  exchange  of  prisoners  or 
the  sick;  to  negotiate  an  armistice;  to  give  time,  in  the  event  of 
bombardment,  to  the  inhabitants  of  a  fortified  town  to  leave  it 
without  danger. 

1748.  The  commanders  of  the  hostile  armies  and  any  troop 
commander,  acting  separately  and  independently  of  the  rest  of  the 
army,  shall  have  the  right  to  demand  or  grant  a  suspension  of 
hostilities. 

Such  suspension  may  also  take  place  by  tacit  understanding;  but 
in  that  case  it  does  not  produce  the  same  legal  consequences  and 
reciprocal  obligation  as  the  suspension  of  arms  by  express  agree- 
ment. 

1749.  A  commander  who  desires  to  request  a  suspension  of 
arms  shall  be  entitled  to  send  a  messenger  with  a  flag  of  truce 
supphed  with  a  declaration  authorizing  him  to  treat  in  the  com- 
mander's name  with  the  hostile  commander.  The  latter  shall  not 
be  bound  to  interrupt  the  battle  or  attack  nor  any  other  operations 
merely  because  of  the  appearance  of  the  bearer  of  the  flag  of  truce 
authorized  to  negotiate  a  suspension;  he  shall  merely  be  obliged 
to  comply  with  the  rules  governing  the  sending  and  receiving  of 
flags  of  truce. 

1750.  The  commander  who  receives  a  flag  of  truce  may  accept 
or  decline  the  proposal  to  suspend  hostilities.  It  shall,  however, 
be  considered  contrary  to  military  honor  to  refuse  the  suspension 
of  arms  requested  for  the  sake  of  humanity,  especially  when  the 
commander  shall  have  no  reason  to  suspect  the  good  faith  of  the 
enemy  and  when  no  inconvenience  or  disadvantage  from  the  view- 
point of  military  operations  can  arise  from  granting  the  request. 
(Compare  rule  1608.) 


/ 


634  INTERNATIONAL   LAW    CODIFIED 

CONSEQUENCES    OF   THE   SUSPENSION   OF   ARMS 

1751.  In  case  of  a  suspension  of  arms,  provisions  as  to  its  dura- 
tion and  execution  shall  be  precisely  fixed  either  in  writing  or 
verbally.  The  military  authorities  shall  clearly  determine  the 
respective  obligations  and  reciprocal  guaranties,  the  movements 
of  troops,  and  especially  state  exactly  the  respective  positions,  so 
as  to  avoid  any  ambiguity  and  doubt. 

1752.  Once  the  suspension  of  arms  is  concluded,  the  command- 
ers shall  be  bound  to  bring  it  at  once  to  the  knowledge  of  their 
troops  and  any  unjustified  delay  shall  be  considered  as  a  treacherous 
violation  of  the  convention.  , 

1753.  Cessation  of  hostilities  on  the  part  of  the  hostile  troops 
shall  only  be  compulsory  from  the  time  their  respective  chiefs 
have  directly  brought  to  their  knowledge  the  agreement  to  suspend 
hostilities. 

Nevertheless,  the  commander  of  the  troops  who  shall  have  been 
notified  of  the  convention  shall  have  the  right  to  bring  it  to  the 
knowledge  of  the  commander  of  the  hostile  troops  confronting 
him.  The  latter,  while  not  bound  at  once  to  execute  the  agree- 
ment thus  unofficially  conveyed,  must,  however,  take  account  of 
such  notification  and  execute  the  operations  in  progress  so  as  not 
to  hinder  the  purpose  of  the  suspension  and  at  the  same  time  try 
to  get  official  communication  of  the  agreement  from  his  direct 
superior. 

1754.  When  the  time  limit  fixed  by  the  convention  shall  have 
expired,  hostilities  may  be  resumed  without  any  other  condition, 
save  in  the  event  of  extension  by  express  agreement. 

1755.  In  case  of  ascertained  violation  by  the  enemy  of  the  con- 
ditions agreed  upon,  hostilities  may  be  resumed  at  once  and  the 
suspension  of  arms  shall  thereby  be  considered  as  not  existing. 

CAPITULATION 

1756.  A  capitulation  of  war  is  a  convention  by  which  there  are 
stipulated  the  conditions  of  the  surrender  of  a  fortress,  of  a  fortified 
position  or  of  an  army  corps  or  body  of -troops,  which  have  ceased 
resistance.  It  may  be  concluded  between  the  commander  of  the 
fortress,  fortified  position,  or  troops  obliged  to  surrender  and  the 
hostile  commander  who  directs  the  assault  or  battle. 


CONVENTIONS    GOVERNING    WAR  635 

1757.  The  capitulation  is  only  valid  when  drawn  up  in  writing 
by  the  commanders  and  signed  by  them.  The  conditions  agreed 
upon  between  the  respective  military  authorities  charged  with 
fixing  the  bases  of  the  capitulation  cannot  be  deemed  effective 
unless  approved  and  ratified  by  the  commanders. 

1758.  It  must  be  considered  contrary  to  the  usages  of  war 
between  civilized  peoples  to  refuse  to  grant  the  request  for  a  sus- 
pension of  arms  made  by  the  commander  of  a  fortress  or  army  corps 
with  the  declaration  that  he  wishes  to  capitulate,  whenever  there 
is  no  danger  in  granting  it  and  there  exists  no  good  reason  to  sus- 
pect the  good  faith  of  the  enemy. 

OBJECT   OF   THE    CAPITULATION 

1759.  The  commanders  shall  have  the  power  to  fix  the  conditions 
of  the  capitulation.  They  shall  only  be  entitled,  however,  to  adopt 
conditions  within  the  limits  of  their  powers  and  the  purpose  of 
the  capitulation  itself. 

These  include  stipulations  relating  to  the  treatment  of  troops 
which  capitulate;  the  mode  of  relinquishment  of  the  fortress  and 
the  time  allowed  to  evacuate  it;  the  manner  in  which  the  delivery 
to  the  enemy  of  arms  as  well  as  war  material,  etc.,  shall  take  place; 
the  mode  of  occupation  by  the  latter  of  the  fortress  and  its  annexes 
or  of  military  positions;  and  everything  relating  to  military  opera- 
tions and  to  the  condition  of  the  troops  and  property  belonging 
both  to  the  soldiers  and  to  the  inhabitants  of  the  place  compelled 
to  capitulate. 

The  commanders  shall  have  no  right  to  enter  into  any  stipula- 
tions concerning  the  political  or  administrative  status  of  the 
capitulating  country  or  of  another  territory  belonging  to  the 
vanquished  state.  Accordingly,  all  provisions  relating  to  such 
matters  shall  be  deemed  inoperative. 

The  Italian  legislature  in  its  service  regulations  in  time  of  war,  1882,  fixed 
as  follows  the  objects  of  capitulation: 

"Art.  1155. — The  following  shiill  form  the  object  of  negotiations  in  capitu- 
lations: the  treatment  of  the  troops  which  capitulate,  the  hour  at  which  such 
troops  shall  leave  the  place  and  the  manner  in  which  they  shall  evacuate 
their  positions,  the  manner  in  which  the  delivery  of  arms,  horses,  and  war 
material  which  the  capitulating  troops  must  surrender  shall  take  place,  the 
mode  of  occupation  of  the  fortress  and  its  annexes  or  of  positions  on  the  part 
of  th<!  victorious  troojis,  the  hitter's  obligations  towards  the  persons  and  prop- 
erty of  non-belligerents,  towards  hospitals,  public  establishments,  etc. 


636  INTERNATIONAL   LAW    CODIFIED 

"The  contracting  parties  shall  not  be  free  to  insert  provisions  relating  to 
the  situation  or  to  the  political  or  administrative  status  of  the  capitulating 
fortress  or  of  any  other  territory." 

Calvo,  in  his  Dictionnaire  de  droit  inlernational,  determines  the  objects  of 
capitulation,  and  then  adds:  "  but  (there  shall  be]  no  stipulation  relating  to 
the  political  constitution  and  the  administration  of  the  capitulating  city" 
(p.  123). 

Considering  these  principles  as  established  by  "common"  law,  the  reason- 
ing of  the  partisans  of  the  Pope's  rights  appears  to  have  no  serious  ground. 
They  base  themselves  in  effect  upon  the  fact  that  the  capitulation  signed  on 
the  20th  of  September,  1870,  between  the  commanders  of  the  Italian  and  Pon- 
tifical troops  relative  to  the  surrender  of  Rome,  does  not  include  the  Mount 
Vatican,  the  Castel  Sant'Angelo  and  the  "Citta  Leonina,"  to  contend  that 
the  Pope's  sovereignty  was  reserved  as  to  that  portion  of  the  territory.  They 
forget  that  the  military  commanders  were  without  power  to  stipulate  anything 
in  regard  to  the  political  and  administrative  status  of  the  territory  compelled 
to  capitulate. 

CONSEQUENCES    OF   THE    CAPITULATION 

1760.  All  the  conditions  agreed  upon  in  the  capitulation,  which 
do  not  exceed  the  powers  of  the  commandants,  shall  be  faithfully 
observed  and  deemed  obligatory  upon  the  State  just  like  any  obli- 
gation assumed  by  a  public  official  in  the  exercise  of  his  public 
duties. 

It  shall,  however,  be  considered  as  contrary  to  military  honor 
and  as  an  arbitrary  and  excessive  proceeding  to  impose  dishonor- 
able conditions  on  a  body  of  troops  compelled  to  capitulate  or  on 
their  commander, 

1761.  When  a  belligerent  has  imposed  and  obtained  an  uncon- 
ditional capitulation  he  may  exercise  his  rights  with  respect  to 
persons,  to  the  fortress  or  fortified  position  and  to  property  within 
the  limits  of  the  laws  and  customs  of  war. 

It  shall  never  be  permissible  to  put  to  death  the  commander  or 
the  soldiers,  even  when  they  have  offered  a  stubborn  resistance; 
it  shall  merely  be  permissible  to  declare  them  prisoners  according 
to  the  usages  of  war. 

In  regard  to  property,  the  victor  has  the  same  rights  as  in  the 
case  of  military  occupation  of  the  hostile  country. 

1762.  The  capitulation  shall  be  considered  valid  and  operative 
with  all  its  necessary  effects  as  regards  the  state  against  which  it 
has  been  stipulated.  Even  when  the  commander  of  a  fortress  or  of 
a  body  of  troops  has  surrendered  unconditionally  without  being 
compelled  thereto  by  necessity,  the  sovereign  may  remand  him 


CONVENTIONS  GOVERNING  WAR  637 

to  a  court-martial  to  account  for  his  conduct,  but  he  cannot 
disregard  the  effectiveness  of  the  capitulation  concluded  by  the 
officer. 

1763.  The  commander  of  the  fortress  or  fortified  position  who 
has  capitulated  must  see  that  after  the  capitulation  his  troops 
do  not  destroy  or  damage  in  bad  faith  the  defense  works,  nor  carry- 
away  the  arms  and  ammunition  in  their  possession  which  must 
be  turned  over  to  the  victor.  Any  destruction  or  wilful  damage 
on  the  part  of  the  troops  after  the  conclusion  of  the  capitulation 
shall  be  regarded  as  committed  in  bad  faith  and  in  violation  of 
military  honor.  • 

OBLIGATIONS   ARISING    FROM    A   UNILATERAL   ACT 

1764.  Military  honor  requires  that  commanders  of  armies  or 
army  corps  shall  strictly  fulfill  the  engagements  they  have  form- 
ally entered  into  by  means  of  proclamations,  formal  promises  and 
unilateral  acts  of  whatsoever  nature. 

It  shall  be  regarded  as  an  act  of  veritable  treachery  for  a  military 
commander  to  violate  his  engagements  formally  undertaken. 

SAFE-CONDUCT — LICENSES 

1765.  A  safe-conduct  consists  in  the  permission  given  in  writing 
by  a  commander  to  one  or  more  persons  to  cross  the  zone  of  ter- 
ritory occupied  by  troops  without  being  liable  to  any  search  or 
molestation. 

License  is  the  permission  to  undertake  certain  specific  acts 
which  as  a  rule  are  to  be  considered  as  prohibited  according  to  the 
laws  and  customs  of  war  and  the  provisions  of  martial  law  pro- 
claimed by  a  commander  in  a  certain  locality. 

1766.  A  safe-conduct  may  be  temporary  or  permanent.  The 
former  is  only  valid  for  the  time  therein  mentioned;  the  latter  is 
valid  as  long  as  the  war  lasts  or  until  annulled  or  revoked. 

1767.  A  safe-conduct  properly  delivered  by  a  competent  au- 
thority shall  be  considered  as  subject  to  the  following  rules: 

(a)  When  given  to  enable  the  holder  to  proceed  to  a  certain 
place,  it  also  includes  permission  to  return  therefrom,  provided 
this  is  within  the  purposes  of  flic  safe-(^onduct; 


638  INTERNATIONAL   LAW   CODIFIED 

(6)  Permission  to  leave  a  certain  place  implies  also  that  the 
holder  shall  be  protected  during  the  trip  so  long  as  he  shall  not  go 
beyond  the  limits  of  the  occupied  territory  or  the  hnes  of  the  troops; 

(c)  The  safe-conduct  is  personal  only  and  shall  not  be  considered 
as  applying  to  persons  of  the  incumbent's  family  except  when 
expressly  so  stated ; 

(d)  The  holder  shall  not  be  free  to  transport  merchandise  or 
other  objects  without  special  permission; 

(e)  The  safe-conduct  granted  to  a  class  of  persons  (newspaper 
correspondents,  officers  of  neutral  Powers  following  the  operations 
of  war,  etc.)  shall  be  understood  to  comprise  all  persons  capable 
of  proving  that  they  belong  to  the  said  class; 

(f)  The  safe-conduct  granted  to  the  diplomatic  agent  of  a  neu- 
tral Power  shall  be  deemed  to  include  all  persons  who,  under  in- 
ternational usages,  belong  to  his  official  suite. 

1768.  Any  person  who  has  obtained  a  safe-conduct  shall  be 
bound  strictly  and  faithfully  to  abide  by  its  provisions.  Should 
he  violate  or  take  undue  advantage  of  his  permission  in  a  manner 
detrimental  to  the  belligerents,  he  could  be  treated  as  an  enemy 
and  subjected  to  the  laws  of  war. 

1769.  A  safe-conduct  may  be  withdrawn  by  any  authority 
superior  to  the  granting  authority.  The  revocation,  however, 
must  be  notified  to  the  officer  who  issued  it  and  to  the  incumbent, 
so  that  the  latter  may  adopt  any  measures  that  circumstances 
may  suggest  to  protect  himself. 

1770.  A  safe-conduct  granted  for  a  certain  period  expires 
automatically  at  the  time  indicated.  Should  the  person  to  whom 
it  is  granted  be  prevented,  however,  by  force  majeure  from  getting 
completely  out  of  the  territory  occupied  by  the  troops,  when  the 
time  expires,  the  military  authorities,  after  having  verified  the 
circumstances  of  the  case,  ought  to  take  such  circumstances  and 
the  purpose  of  the  authorization  into  account  and  consider  such 
person  as  still  protected  by  the  safe-conduct. 

SAFEGUARD 

1771.  Safeguard  is  a  concession  on  the  part  of  a  belligerent, 
declaring  certain  persons  or  places  to  be  relieved  from  the  laws  of 
war  and  covered  by  a  special  protection. 


CONVENTIONS    GOVERNING    WAR  639 

1772.  A  belligerent  who  has  granted  safeguard  to  establish- 
ments, institutions  and  places  devoted  to  a  public  service  must 
also  consider  as  immune  any  persons  connected  with  the  man- 
agement of  these  establishments.  He  must  even  respect  enemy 
soldiers  who  may  be  there,  and  may  not  declare  them  prisoners  of 
war,  but  shall  provide  them  with  a  safe-conduct  to  rejoin  their 
regiments. 

ARMISTICE 

1773.  An  armistice  is  a  convention  concluded  by  the  com- 
manders-in-chief of  the  hostile  armies  or  by  the  sovereigns  of  the 
belligerent  states,  the  purpose  of  which  is  the  temporar}'^  cessation 
of  hostilities  in  the  whole  theater  of  war.  Should  this  convention 
be  limited  to  a  particular  area,  it  would  be  known  as  a  truce. 

1774.  An  armistice  must  be  considered  as  designed  to  provide 
an  opportunity,  while  it  lasts, for  an  agreement  on  peace  conditions. 
In  the  meantime,  it  shall  not  be  permissible  to  alter  essentially  the 
respective  positions  of  the  belligerents  or  to  undertake  military 
operations  likely  to  modify  the  reciprocal  situation  of  the  armies 
or  to  affect  the  final  outcome  of  the  war. 

1775.  An  armistice  may  be  concluded  for  a  time  either  fixed 
or  indeterminate.  In  the  latter  case,  it  shall  be  fully  operative 
until  denounced  by  one  of  the  belligerents. 

Nevertheless,  even  when  the  armistice  shall  have  been  concluded 
for  an  indeterminate  period  or  shall  have  been  extended  indefinitely, 
it  can  never  be  assimilated  to  peace,  nor  can  the  state  of  war  be 
considered  as  terminated. 

The  principle  just  set  forth  is  designed  to  estabhsh  the  fact  that  an  armistice, 
even  when  long  protracted,  cannot  be  assimilated  to  peace.  Suspension  of  hos- 
tilities in  the  whole  theater  of  war  is  one  thing;  concluding  peace  which  im- 
plies immediate  cessation  of  the  application  of  the  law  of  war,  is  another.  An 
armistice,  however  long  protracted,  is  not  jieace.  So  long  as  peace  is  not 
concluded,  hostilities  may  be  renewed — it  would  not  require  either  a  new  ob- 
ject of  dispute,  new  formalities,  or  a  ncnv  declaration  of  war;  notification  of 
the  ending  of  the  armistice  would  be  sufficient  to  renew  and  continue  the  hos- 
tilities interrupted.  It  is  necessary  to  bear  these  principles  in  mind,  because 
both  in  the  relations  of  public  internal  law  and  in  those  of  international  law, 
during  an  armistice,  however  long  protracted,  the  law  of  war,  not  the  law  of 
peace,  must  be  applied. 


640  INTERNATIONAL   LAW    CODIFIED 

REQUISITES   OF   AN   ARMISTICE 

1776.  An  armistice  must  fulfill  all  the  essential  conditions  of  a 
treaty  and  can  therefore  only  be  valid  if  concluded  by  persons 
fully  competent  to  do  so. 

1777.  The  commanders-in-chief  of  the  belligerent  armies  must 
be  considered  as  possessing  the  power  to  conclude  an  armistice. 
Should  they  have  concluded  it  subject  to  the  ratification  of  the 
head  of  the  State,  it  would  provisionally  be  fully  operative  during 
the  time  fixed  by  the  commanders  themselves  for  the  exchange  of 
ratifications. 

1778.  The  armistice  convention  must  be  considered  as  perfected 
at  the  time  of  its  concludion  and  signature,  subject  to  the  provisions 
of  the  preceding  rule. 

It  expires  at  the  end  of  the  time  established  in  the  convention 
which  shall  be  fixed  by  counting  the  dies  a  quo. 

1779.  The  contracting  parties  must  clearly  and  precisely  de- 
termine the  conditions  of  the  armistice,  especially  as  regards: 

(a)  The  day  and  hour  from  which  the  armistice  shall  commence 
and  its  duration; 

(6)  The  principal  lines  of  the  respective  positions  of  the  bellig- 
erents and  all  other  points  calculated  to  determine  the  situation 
of  the  armies  and  to  establish  what  is  to  be  prohibited  or  allowed 
during  the  armistice; 

(c)  The  determination  of  the  time  to  elapse  between  the  de- 
nunciation of  the  armistice  by  one  of  the  belligerents  and  the  re- 
newal of  hostihties,  should  the  duration  of  the  armistice  not  be 
fixed, 

RECIPROCAL   OBLIGATIONS   DURING    THE   ARMISTICE 

1780.  Independently  of  any  express  agreement,  it  shall  be  con- 
sidered as  absolutely  prohibited  during  the  armistice  to  undertake 
any  defense  work  in  the  theater  of  war,  to  rebuild  destroyed  works, 
to  introduce  ammunition  into  a  besieged  fortress,  or  to  undertake 
any  operation  whatever  likely  to  strengthen  the  respective  mili- 
tary positions  on  either  side.  But  it  is  not  forbidden  to  either 
party  to  do  anything  which,  without  substantially  altering  their 
respective  militarj'^  positions,  might  contribute  to  make  the  com- 


CONVENTIONS   GOVERNING    WAR  641 

batants  stronger.  Under  this  head  we  might  include  the  drilling 
of  troops,  the  manufacture  of  arms,  the  building  of  defense  works 
outside  the  theater  of  war  and  any  other  operation  which  the  bel- 
ligerent might  have  undertaken  had  not  the  war  been  suspended, 
and  which  the  enemy  would  have  been  unable  to  prevent  had  the 
struggle  continued. 

1781.  A  belligerent  may  not  during  an  armistice  revictual  a 
besieged  or  blockaded  place,  but  he  cannot  be  denied  the  intro- 
duction into  such  place  of  the  quantity  of  provisions  which  may 
be  required  for  the  daily  consumption  of  the  garrison. 

To  avoid  all  difficulty,  it  will  be  advisable  to  fix  the  quantity 
in  advance  in  the  convention  itself. 

EXECUTION    OF   THE    ARMISTICE 

1782.  An  armistice,  whatever  its  conditions  may  be,  must  be 
executed  honestly  and  in  good  faith.  The  commanders  of  the 
armies  must  notify  its  conclusion  as  soon  as  possible,  and  all  the 
military  authorites  to  whom  it  shall  have  been  officially  communi- 
cated must  at  once  order  the  suspension  of  hostilities. 

1783.  The  contracting  paities  are  bound  to  carry  out  faithfully 
those  provisions  of  the  armistice  which  concern  their  relations  with 
private  persons  and  with  the  inhabitants  of  the  country  militarily 
occupied  by  either  of  them. 

It  shall  alwaj^s  be  deemed  contrary  to  military  honor  and  to  the 
laws  of  war  for  a  belligerent  during  the  armistice  to  incite  to  re- 
bellion or  treason  the  inhabitants  of  the  territory  he  occupies  or 
in  any  way  to  encourage  the  soldiers  of  his  adversary  to  desert. 

ACTS   OF   HOSTILITY    DURING   THE   ARMISTICE 

1784.  Any  violation  of  the  armistice  committed  by  one  of  the 
parties  shall  give  to  the  other  the  i-ight  to  denounce  the  convention 
and  to  renew  hostilities.  Should  the  violation  be  serious,  the  othei 
party  could,  by  this  very  fact,  consider  the  armistice  convention 
as  terminated.  Such  a  violation  would  involve  the  international 
responsibility  of  the  State  just  as  any  wrongful  violation  of  a 
treaty  legally  concluded. 

It  shall  not  be  deemed  a  violation  of  the  armistice  for  a  body 


642  INTERNATIONAL  LAW  CODIFIED 

of  troops  to  have  continued  hostilities  after  the  conclusion  of  the 
armistice,  but  prior  to  their  notification.  The  case  would  be 
different  if  the  delay  in  notification  should  be  considered  as  due 
to  bad  faith;  it  would  be  so  presumed  if  sufficient  time  had  elapsed 
to  communicate  it. 

1785.  Hostile  acts  on  the  part  of  private  individuals  or  volunteers 
not  under  military  authority,  who  have  acted  on  their  own  initia- 
tive without  the  tacit  connivance  of  the  military  authorities  or  of 
the  Government,  shall  not  be  considered  as  violations  of  the  pro- 
visions of  the  armistice.  They  merely  warrant  the  belligerents  in 
treating  the  persons  who  have  committed  such  acts,  knowing  of 
the  armistice,  as  rebels  punishable  under  martial  law,  or  to  re- 
quest their  punishment  by  the  hostile  Government.  Further- 
more, when  these  acts  are  such  as  to  involve  the  indirect  respon- 
sibility'' of  the  Government,  the  belligerent  shall  have  the  right  to 
claim  an  indemnity  for  the  injury  sustained. 

TRUCE 

1786.  A  truce  or  local  armistice  does  not  completely  interrupt 
hostihties  or  the  war,  but  merely  suspends  the  belligerent  opera- 
tions in  that  portion  of  the  territory  to  which  the  convention  refers. 

A  truce  is  subject  to  the  same  rules  as  an  armistice,  and  may 
be  considered  a  local  armistice. 

Albericus  Gentilis  defines  a  truce  as  follows:  (Lib.  II,  cap.  XII,  De  jure 
belli):  "A  truce  is  a  convention  between  enemy  parties  reciprocally  to  abstain 
from  giving  offense  to  one  another  for  a  short  period  of  time.  ...  It  takes 
place  in  the  course  of  hostilities  not  in  order  to  end,  but  merely  to  interrupt 
them.  ...  A  prolonged  truce  would  bear  great  similarity  to  peace." 

PRELIMINARIES    OF   PEACE 

1787.  Conventions  by  means  of  which  the  preliminary  conditions 
of  peace  are  determined  can  only  be  validly  entered  into  by  per- 
sons competent  to  conclude  a  treaty  of  peace  under  the  consti- 
tutional law  of  the  belligerent  state,  and  they  are  subject  to  the 
same  rules  as  such  a  treaty.  The  stipulations  of  these  conventions 
to  prepare  the  conclusion  of  final  peace  shall  be  deemed  obligatory 
and  must  be  observed  honestly  and  in  good  faith,  so  long  as  the 
negotiations  for  peace  shall  not  have  been  terminated  or  suspended. 


TITLE  XVII 

RIGHTS    OF    BELLIGERENTS    TOWARDS    NEUTRALS 

1788.  Every  belligerent  state  has  the  right  to  subject  all  neutral 
states  to  the  exigencies  and  requirements  of  the  war. 

For  this  purpose  it  may  require: 

(o)  That  every  neutral  state  shall  strictly  maintain  its  legal 
status  as  such  and  observe  its  neutral  duties  as  determined  by 
the  common  law  of  nations,  express  conventions  and  the  general 
principles  of  international  law,  under  penalty  of  assuming  the 
position  of  an  enemy  when  it  commits  hostile  acts; 

(6)  That  the  ships  of  neutral  states  shall  be  subject  to  inter- 
ference with  their  peaceful  connnerce  by  being  compelled  to 
refrain  from  trading  with  hostile  places  effectively  blockaded; 

(c)  That  no  neutral  state  shall  directly  perform  acts  of  assist- 
ance for  the  enemy,  nor  fail  in  due  diligence  to  prevent  its  nationals 
from  lending  such  assistance; 

(rf)  That  no  merchant  vessel  flying  a  neutral  flag  shall  carry 
to  the  enemy  goods  considered  as  contraband  of  war; 

(e)  That  every  neutral  merchant  vessel  shall  submit  to  search 
on  the  high  seas  and  in  the  territorial  waters  of  the  belligerent 
state,  with  a  view  to  determining  its  legal  status  as  a  neutral 
and  the  nature  of  its  cargo; 

(/)  That  the  penal  sanctions  ])rovided  for  by  intei'national  law 
to  compel  the  observance  by  neutrals  of  the  laws  and  customs  of 
war  and  the  legal  protection  of  the  i-ights  of  belligerents  as  respects 
neutrals  shall  be  applied  by  a  competent  court. 

1789.  No  belligerent  has  the  right  to  claim  the  respect  of  its 
own  rights  by  neutrals  unless  it  strictly  observes,  in  their  exercise, 
the  laws  and  customs  of  war  which  govern  those  rights. 

1790.  The  laws  and  customs  of  war  which  ought  to  govern  the 
rights  of  belligerents  toward  neutrals  and  the  duties  of  neutrals 
must  be  those  established  in  conformity  with  the  customary  law  of 

()43 


644  INTERNATIONAL   LAW   CODIFIED 

nations  and  with  conventional  law,  and  in  their  absence  in  con- 
formity with  the  general  principles  of  international  law. 

Among  the  states  represented  at  the  second  Hague  Conference 
the  rules  which  are  established  in  conventions  constituting  a 
part  of  the  General  Act  of  October  18,  1907,  must  be  considered 
as  legally  binding. 


TITLE  XVIII 

NEUTRALITY  AND  THE  RIGHTS  AND  DUTIES  ARISING 

THEREFROM  ' 

CONCEPT   AND    NATURE    OF   NEUTRALITY 

1791.  Neutrality,  objectively  considered,  is  in  itself  a  state 
of  fact,  and  consists  in  the  complete  abstention  from  any  hostile 
act  against  either  one  of  the  belligerents  and  from  any  act  cal- 
culated to  favor  either  one  of  the  belligerents  in  their  military 
operations. 

Subjectively  considered,  it  indicates  the  legal  status  of  a  state 
which,  in  the  event  of  war,  takes  no  part  in  the  hostilities,  either 
directly  or  indirectly. 

The  definition  of  neutrality  given  in  preceding  editions  of  this  work  and 
which  is  here  reproduced,  has  given  rise  to  various  criticisms  on  the  part  of 
those  who  have  not  carefully  considered  our  concept.  It  is  our  intention  to 
determine  synthetically  the  objective  and  substantial  conditions  from  which 
are  derived  the  legal  situation  and  condition  of  a  neutral.  Such  a  legal  state 
or  condition  of  a  neutral  power  may  be  called  neutrality;  but,  as  every  legal 
relation  presupposes  certain  conditions  of  fact  from  which  arises  the  condition 
of  law  (jus  ex  Jaclo  oritur)  regulating  the  presupposed  fact  which  constitutes 
and  characterizes  the  status  known  as  neutrality,  we  have  maintained,  and 
still  maintain,  that  such  a  preliminary  fact  consists  in  the  complete  abstention 
from  any  hostile  act  against  the  two  belligerents  and  from  any  act  calculated 
to  be  of  assistance  or  aid  to  either  one  in  the  prosecution  of  the  war.  Accord- 
ingly our  definition  did  not  refer  to  the  legal  content  of  the  state  of  neutrality, 
and  consequently  did  not  determine  the  legal  conditions  of  neutrality,  and 
did  not  specify  which  acts  might  be  considered  as  giving  assistance.  Matters 
relating  to  the  legal  content  were  not  the  object  of  our  definition;  we  referred 
to  the  presupposed  fact  out  of  which  arises  the  legal  concept,  namely,  the  fact 
from  which  arises  the  original  right  itself  and  the  legal  status  called  neu- 
trality. 

1792.  Neutrality  may  be  voluntary,  absolute  or  conventional. 
The  first  is  a  consequence  of  the  autonomy  of  every  state  and 

'  The  rules  concerning  neutrality,  and  the  rights  and  duties  arising  there- 
from are  reprinted  in  the;  same  form  as  presented  in  preceding  editions  of  this 
work. 

645 


640  INTERNATIONAL   LAW   CODIFIED 

of  the  right  which  it  possesses  to  regulate  with  complete  in- 
dependence all  matters  concerning  its  relations  with  other  states 
and  to  determine  freely  the  position  which  it  intends  to  assume  on 
the  outbreak  of  war. 

The  second  is  the  neutrality  which  in  a  general  and  absolute 
manner  is  imposed  in  the  common  interest  of  all  the  states  upon 
one  of  them,  either  by  means  of  a  general  treaty  or  of  a  rule  es- 
tablished in  common  accord  by  the  states  assembled  in  a  Congress, 
or  through  conditions  agreed  upon  as  to  the  recognition  of  the  in- 
ternational personality  of  such  state. 

The  third  may  be  the  consequence  of  a  special  treaty,  by  the 
terms  of  which  two  or  more  states  undertake  by  reciprocity  to 
observe  neutrality  in  the  event  of  a  war  between  one  of  them  and  a 
third  power. 

1793.  General  or  absolute  neutralitj''  should  be  deemed  under 
the  legal  protection  of  all  the  states  interested  in  having  it  re- 
spected. 

STATES   ENTITLED   TO   BE   CONSIDERED    NEUTRAL 

1794.  Every  state  has  the  right,  when  war  breaks  out,  to  declare 
and  notify,  through  diplomatic  channels,  its  intention  to  remain 
neutral.  Having  made  such  a  declaration  and  notification  it  has 
the  right  to  expect  to  be  considered  as  a  neutral  and  shall  be  en- 
titled to  the  rights  which  arise  from  such  legal  status  from  the  time 
of  its  declaration. 

States  whose  neutrality  must  be  deemed  obligatory  shall  be 
considered  ipso  facto  neutral  as  soon  as  war  breaks  out. 

1795.  A  state  which  did  not  declare  its  intention  of  remaining 
neutral,  but  actually  fulfills  the  conditions  necessary  to  be  so  con- 
sidered, in  the  fact  that  it  does  not,  directly  or  indirectly,  take  any 
part  in  the  war,  shall  have  the  right  to  be  considered  neutral  and 
entitled  to  enjoy  and  exercise  the  rights  arising  therefrom  on  con- 
dition of  complying  with  the  duties  of  neutrals. 

1796.  A  state  forfeits  its  right  to  neutralitj''  whenever  it  takes 
part  in  the  war  for  any  reason,  or  furnishes  assistance  to  a  belliger- 
ent, either  by  undertaking  some  hostile  act  against  one  of  the 
belhgerents  or  by  promising  to  do  something  which  may  be  re- 
garded as  an  act  of  military  assistance. 


neutrality:  its  rights  and  duties  647 

The  act  of  assistance  does  not  lose  its  character  as  such  by  reason 
of  the  fact  that  the  state  would  be  obliged  to  undertake  it  on  ac- 
count of  a  previous  treaty  concluded  with  a  belligerent,  or  other- 
wise. 

1797.  No  state  may  limit  its  neutrality  to  a  part  of  its  territory 
only. 

The  legal  status  of  every  state,  from  the  viewpoint  of  absolute 
abstention  or  non-abstention  from  the  war,  shall  be  considered 
just  as  indivisible  as  its  personality. 

1798.  No  state  which  is  the  ally  of  a  belligerent  in  a  war  waged 
by  the  latter  against  a  certain  state  can  lay  claim  to  being  a  neutral 
in  another  war  sustained  at  the  same  time  by  its  ally  against  an- 
other state. 

The  assistance  given  to  a  state  in  a  war  is  undoubtedly  an  indirect  help  in 
any  other  war  waged  against  another  country  by  that  state,  since  its  result 
is  to  make  the  belligerent  stronger  as  against  both  adversaries. 

RIGHTS    OF    NEUTRAL   STATES 

1799.  Any  state  which  has  declared  its  neutrality  may  make  use 
of  its  military  forces  to  defend  it.  In  like  manner,  states  which 
have  declared  themselves  neutral  can  form  an  alliance  among 
themselves  in  order  to  defend  their  rights  as  such. 

At  any  rate,  the  states  which  have  remained  neutral  could  in- 
crease their  armaments  with  a  view  to  defending  their  neutrality. 

1800.  Every  neutral  state  may  claim  the  legal  and  legitimate 
enjoyment  of  all  the  rights  appertaining  to  an  independent  coun- 
try in  time  of  peace.  It  cannot,  however,  exercise  them  except 
subject  to  the  restrictions  made  necessary  by  and  the  require- 
ments of  the  state  of  war. 

1801.  No  limitation  upon  the  exercise  of  the  rights  of  neutrals 
may  be  arbitrarily  imposed  by  either  belligerent.  Such  a  restric- 
tion is  only  justified  when  provided  for  in  the  conyentional  rules 
established  by  the  states  with  regard  to  their  reciprocal  duties 
in  cases  where  they  shall  have  declared  their  intention  of  remaining 
neutral,  or  when  the  restriction  arises  from  the  very  nature  of  neu- 
trality. 

What  has  rendered  the  legal  status  of  neutrality  uncertain  and  indefinite 
is  the  lack  of  positive  rules  regarding  the  duties  of  neutrality.  Neutral  states 
must  undoubtedly  suffer  from  the  consequences  of  war  and  their  rights  must 


048  INTERNATIONAL   LAW   CODIFIED 

be  exercised  with  such  limitations  as  the  requirements  of  the  struggle  may 
impose.  But  should  the  belligerents  themselves  be  permitted  to  determine 
the  duties  or  other  conditions  to  be  imposed  upon  neutrals  the  result  would 
be  that  when  either  one  of  them  should  unduly  increase  the  restrictions  placed 
upon  the  exercise  of  the  rights  of  neutrals,  all  that  the  belligerent  would  have 
to  do  to  justify  his  claims  would  be  to  invoke  the  so-called  necessities  of  war. 
Restrictions  would  then  be  made  so  severe  that  neutrals  would  not  be  able  to 
exercise  the  rights  to  which  they  are  entitled.  To  prevent  all  arbitrariness  in 
the  matter  it  must  be  admitted  as  a  fixed  rule  that  the  exercise  of  the  rights 
of  neutrals  cannot  be  otherwise  limited  than  in  accordance  with  the  rules  of 
law  relating  to  the  duties  of  neutrals. 

For  further  discussion  of  this  point  see  our  former  work,  Diritlo  interna- 
zionale  ptibblico,  v.  Ill,  3d  ed.,  chap,  entitled  "  Consider azioni  storiche  sulla 
neutralita"  (Turin,  Unione  Tipografico  Editrice)  and  the  French  translation 
of  Ch.  Antoine  (Paris,  Pedone-Lauriel,  publishers). 


INVIOLABILITY    OF   NEUTRAL   TERRITORY 

1802.  It  must  be  considered  an  absolute  right  of  any  neutral 
state  to  preserve,  during  the  war,  the  inviolabihty  of  all  its  terri- 
tory with  its  dependencies  and  of  its  territorial  waters,  and  to 
insist  that  no  act  of  warfare  shall  be  consummated  therein  by  any 
of  the  belligerents. 

1803.  The  belligerents  are  bound  scrupulously  to  respect  the 
inviolability  of  neutral  territory  and  its  dependencies  and  to  abstain 
from  committing  therein  any  act  of  hostility,  even  of  completing 
therein  a  military  operation  commenced  outside  such  territory. 

Every  act  of  warfare  undertaken  or  accomplished  in  the  ter- 
ritory of  a  neutral  state  must  be  considered  as  contrary  to  the  laws 
of  war.  Accordingly,  it  is  unlawful  to  seize  an  enemy  ship  within 
the  territorial  waters  of  a  neutral  country,  even  when  the  ship 
has  taken  refuge  there  in  order  to  escape  the  enemy. 

If,  however,  a  belligerent  should  commence  an  attack  on  the 
high  seas  and  near  the  end  of  the  battle  the  attacked  ship  should 
enter  neutral  waters,  the  inviolability  of  such  waters  could  not 
be  considered  as  infringed  by  the  fact  that  the  attack  ended 
there,  provided  there  was  unity  of  action  on  the  part  of  the  enemy 
war-ship. 

INDEPENDENCE  IN  THE  EXERCISE  OF  THE  RIGHTS  OF  SOVEREIGNTY 

1804.  Every  neutral  state  is  entitled  to  exercise  with  absolute 
independence  its  rights  of  sovereignty  in  time  of  war  as  in  time  of 


neutrality:  its  rights  and  duties  G49 

peace.  The  free  exercise  of  these  rights  may  not  be  restricted  on 
the  ground  of  the  possible  consequent  prejudice  to  either  belliger- 
ent. It  may  be  limited  only  in  accordance  with  the  preceding 
rules,  or  under  special  circumstances  calculated  to  attribute  to 
the  acts  of  sovereignty  the  character  of  interference  and  of  as- 
sistance to  one  of  the  combatants. 

This  rule  may  find  its  application  in  the  case  of  a  neutral  government  hav- 
ing recognized  a  government  constituted  by  an  insurgent  party,  in  a  civil 
war,  by  regarding  it  as  entitled  to  all  the  rights  of  a  beUigerent.  Such  a  recog- 
nition may,  of  course,  be  considered  unwarranted  by  the  particular  govern- 
ment which  characterizes  the  insurgents  as  rebels;  the  conduct  of  the  neutral 
government  might  be  regarded  as  a  manifestation  of  sympathy  towards  the 
insurgent  party,  and  on  the  other  hand  as  an  unfriendly  act  towards  the 
constituted  government.  Yet  the  neutral  state  cannot  be  denied  the  right 
so  to  act. 

(Compare  Rule  173.) 

FREEDOM    OF   PEACEFUL    COMMERCE 

1805.  A  neutral  state  has  the  right  to  protect  the  freedom  of 
peaceful  commerce  of  its  citizens  in  time  of  war,  and  to  insure  in 
every  way  the  security  of  navigation  and  the  inviolability  of  its 
merchant  vessels  and  their  cargoes.  It  is  likewise  its  duty  to  pro- 
tect the  undeniable  rights  of  its  nationals  to  be  considered  as 
exempt  from  the  laws  of  war  so  long  as  they  have  not  infringed  the 
duties  of  neutrality,  and  to  safeguard  their  right  to  do  business 
as  freely  as  in  time  of  peace.  Moreover,  such  right  may  be  exer- 
cised through  the  maintenance  of  commercial  relations  not  only 
between  neutral  ports  and  those  of  the  enemy,  but  between  any 
two  ports  of  the  belligerents,  in  execution  of  treaties  concluded 
during  peace  and  which  must  be  considered  as  having  remained 
in  full  force  notwithstanding  the  outbreak  of  war. 

1806.  The  belligerents  are  bound  to  consider  in  full  force  trea- 
ties concluded  during  peace  with  states  which,  at  the  outbreak  of 
war,  have  made  a  declaration  of  neutrality,  and  to  continue  to 
assure  to  them  and  to  their  citizens  the  full  enjoyment  of  all  the 
rights  and  advantages  arising  out  of  these  treaties,  just  as  if  the 
war,  to  which  these  states  remain  neutral,  had  not  supervened. 

Since  it  is  of  the  very  nature  of  neutrality  that  the  international  law  govern- 
ing peaceful  relations  subsists  in  its  entirety  between  the  belligerents  and 
neutral  states,  it  follows  that  it  is  not  sufficient  in  order  to  suspend  such  right 
or  to  modifv  its  application  to  invoke  the  pretended  right  of  preventing  neu- 


650  INTERNATIONAL   LAW   CODIFIED 

trals  from  profiting  from  the  advantages  which  the  war  may  give  them.  In- 
deed, the  old  theory  cannot  be  admitted  that  the  beUigerents  have  the  right 
to  prevent  neutrals  from  profiting  by  the  war.  On  the  contrary,  it  must  be 
admitted  in  principle  that  the  law  of  peace,  subsisting  in  its  entirety  so  far 
as  neutrals  are  concerned,  binds  the  belligerents  to  regulate  their  conduct  in 
conformity  with  it. 


DUTIES   OF   NEUTRAL   STATES 

1807.  A  neutral  state  must: 

(a)  Abstain  faithfully  and  completely  from  taking  part  in  the 
war  and  do  nothing  which,  directly  or  indirectly,  may  contribute 
to  render  either  belligerent  stronger;  in  general,  abstain  from  any 
act  whatever  having  the  character  of  assistance  to  one  of  the  bel- 
ligerents for  war  purposes;  and  abstain  impartially  from  lending 
assistance  to  either  belligerent. 

(6)  Neither  permit  nor  tolerate  either  belligerent,  on  the  ter- 
ritory of  the  state  or  its  dependencies,  to  undertake  any  operation 
of  war  or  accomplish  any  act  with  respect  to  the  war; 

(c)  Undertake  by  its  laws  to  compel  all  persons  subject  to  its 
jurisdiction  to  respect  the  rules  of  neutrality  and  the  duties  arising 
therefrom ; 

(d)  Undertake  to  enforce  its  criminal  laws  to  the  end  that  per- 
sons subject  to  its  jurisdiction  may  not  violate  with  impunity  the 
rules  of  neutrality  and  the  resulting  duties; 

(e)  Prevent,  by  all  means  at  its  disposal  and  with  due  diligence, 
any  eventual  injury  which  may  be  done  to  either  belligerent  from  a 
violation  of  its  neutrality  by  private  individuals; 

The  obligations  arising  from  neutrality  do  not  merely  concern  the  govern- 
ment of  the  state  which  has  made  a  declaration  of  neutrality,  so  as  to  involve 
its  direct  responsibility  in  case  of  violation,  but  concerns  likewise  the  citizens 
of  that  state.  These  citizens,  indeed,  are  bound  individually  not  to  violate 
the  duties  of  neutrality  by  undertaking  hostile  acts  contrary  to  the  obligations 
assumed  by  their  government  when  declaring  its  neutrality. 

Yet,  hostile  acts  accomplished  by  citizens  of  the  state  do  not  always  involve 
the  responsibility  of  the  government.  The  indirect  responsibility  of  the 
state  can  only  arise  if  it  can  be  considered  as  having  been  obliged  to  prevent 
the  accomplishment  of  these  acts  and  had  voluntarily  failed  to  do  what  it 
could  and  should  have  done  towards  preventing  them.  This  is  covered  by 
sections  c,  d  and  e  of  our  rule. 

Compare:  Fiore,  Questioni  di  diritto  su  cast  controversi — Contraversia  tra  il 
governo  olandese  ed  il  governo  inglesa,  p.  299. 


neutrality:  its  rights  and  duties  G51 

ACTS   WHICH   MAY    BE    CHARACTERIZED    AS    ACTS   OF   HOSTILITY 

1808.  The  following  shall  be  deemed  acts  of  hostility : 

(a)  Assistance  given  to  one  of  the  belligerents  by  means  of 
armed  troops  or  placing  at  his  disposal  ships  of  war  or  vessels 
built  and  equipped  for  war,  or  by  giving  him  a  subsidy  or  loan 
calculated  to  aid  in  the  operations  of  the  war; 

Assistance  shall  be  deemed  an  act  of  hostility,  even  when  furnished  with 
perfect  impartiahty  and  equality  to  both  belligerents. 

(6)  The  permission  or  toleration  of  the  use  of  its  territory  by  one 
of  the  belligerents  for  the  passage  of  its  armies; 

The  acts  contemplated  in  paragraphs  a  and  h  do  not  lose  their  real  character 
as  such  even  if  the  state  by  a  previous  treaty  had  undertaken  to  grant  as- 
sistance or  passage. 

(c)  Permission  for  or  toleration  of  any  operation  within  its  ports 
or  territorial  waters  by  a  belligerent  war-ship  calculated  to 
strengthen  its  power  or  augment  its  armament,  or  to  take  in  pro- 
visions and  coal,  except  in  case  of  urgent  necessity,  and  then  not 
beyond  the  quantity  necessary  for  the  needs  of  the  crew  during 
the  time  required  to  reach  the  nearest  home  port  of  the  belligerent. 

(c?)  Openly  favoring  or  encouraging  the  enlistment  of  recruits 
within  its  territory  on  behalf  of  one  of  the  belligerents; 

(e)  Permission  for  or  toleration  of  a  ship  of  war  or  privateer  of 
one  of  the  belligerents  entering  its  ports  or  territorial  waters  to  sell 
or  to  place  in  safety  its  prizes,  except  in  cases  of  forcible  entry 
under  distress,  in  which  circumstances  shelter  may  be  granted, 
on  condition,  however,  of  not  taking  advantage  thereof  for  pur- 
poses of  war ; 

(/)  Permission  granted  to  citizens  to  enlist  in  belligerent  armies, 
or  to  accept  letters  of  marque  to  engage  in  privateering,  or  to 
accept  proposals  of  the  belligerent  states  for  fitting  out  ships  of 
war  or  for  participating  in  any  manner  whatever  in  the  fitting  out 
or  armament  of  a  privateer. 

ACTS   CONSISTENT   WITH    NEUTRALITY 

1809.  The  following  shall  not  be  deemed  hostile  acts  or  acts 
inconsistent  with  neutrality: 

(a)  The  passage  of  armies  through  neutral  territory,  when  the 


652  INTERNATIONAL   LAW   CODIFIPiiD 

belligerent  has  crossed  it  without  authorization  and  the  territorial 
sovereign  is  powerless  to  prevent  it  except  by  becoming  involved 
in  the  war; 

(6)  The  enlistment  in  the  belligerent  armies  of  private  individ- 
uals without  authorization  of  the  Government,  provided  the  Gov- 
ernment has  applied  to  its  citizens  the  laws  in  force  concerning 
the  legal  consequences  of  enhsting  abroad; 

(c)  Open  and  impartial  commerce  in  munitions  of  war  carried 
on  by  individuals  at  their  own  account  and  risk,  without  direct 
or  indirect  encouragement  of  the  Government; 

(d)  Any  act  whatever  on  the  part  of  private  individuals,  not 
prohibited  by  municipal  law,  which  may  have  been  of  advantage 
to  one  of  the  belligerents,  but  which  was  accomplished  on  the 
initiative  of  a  private  individual  alone  without  the  State  having 
done  anything  that  may  have  contributed  to  lessen  the  individ- 
ual's risk  and  to  protect  him  against  the  laws  of  war. 

In  order  to  make  clear  the  principles  above  mentioned,  it  must  be  observed 
that  no  government  can  be  compelled  to  suspend  the  operation  of  municipal 
laws  which  permit  enlistment  abroad,  or  commerce  in  arms  and  munitions  of 
war,  loans,  subsidies,  the  formation  of  relief  committees,  etc.  It  is,  however, 
bound  to  apply  those  laws  so  as  to  eliminate  any  suspicion  of  indirect  en- 
couragement given  to  the  initiative  of  individuals  and  to  commercial  under- 
takings which  must  always  be  carried  out  at  the  risk  of  the  persons  engaged 
therein. 

The  belligerent  always  has  the  right  to  provide  against  all  the  consequences 
of  the  acts  of  individuals,  by  enforcing  against  them  the  laws  of  war.  It  is 
sufficient  that  the  neutral  government  does  not  shield  its  citizens  from  meas- 
ures adopted  by  belligerents  and  justified  by  the  laws  of  war  and  provides  for 
the  application  by  the  authorities  of  all  the  penalties  of  its  municipal  law 
against  certain  unlawful  acts  undertaken  by  individuals  in  time  of  war. 

1810.  It  is  no  longer  to  be  regarded  as  contrary  to  the  duties 
of  neutrality  to  grant  permission  to  the  belligerents  to  transport 
the  sick  and  the  wounded  through  neutral  territory. 


BELLIGERENTS  TAKING  REFUGE  IN  NEUTRAL  PORTS  OR  TERRITORY 

1811.  It  shall  not  be  regarded  as  contrary  to  the  duties  of  neu- 
trality to  give  refuge  in  neutral  ports  to  belligerent  ships  com- 
pelled to  enter  on  account  of  stress  of  weather  or  of  maritime 
disasters,  or  to  receive  on  neutral  territory  soldiers  requesting 
asylum  after  battle  or  troops  pursued  by  the  enemy  who  may  seek 


neutrality:  its  rights  and  duties  653 

refuge.  These  duties  of  humanity  must,  however,  be  accompHshed 
without  any  indirect  prejudice  to  the  interests  of  the  other  bel- 
hgerent  and  in  compHance  with  the  following  rules. 

1812.  The  neutral  government  may  protect  troops  which,  pur- 
sued by  the  enemy,  have  taken  refuge  in  its  territory.  It  may 
likewise  do  everything  required  by  humanity  for  the  maintenance 
and  lodging  of  the  soldiers,  subject  to  the  right  to  be  repaid  for  the 
expenses  incurred  therefor  by  the  State  to  which  the  troops  be- 
long; but  it  may  not  allow  them  to  resume  fighting  unless  they 
have  been  disarmed  before  leaving  the  neutral  territor3\ 

1813.  The  neutral  government  is  bound  to  subject  belligerent 
ships  of  war  which  have  sought  refuge  in  its  ports  on  account  of 
stress  of  weather  to  the  condition  of  resuming  their  navigation 
only  after  a  certain  period  of  time,  not  less  than  twenty-four 
hours,  following  their  arrival.  It  may  permit  ships  which  have 
been  forced  to  put  in  for  the  purpose  of  repairing  damages 
to  make  only  such  repairs  as  are  necessary  to  render  them 
seaworthy  and  to  resume  their  voyage  without  augmenting  their 
armament. 

If  a  belligerent  vessel  has  taken  refuge  in  a  neutral  port  to  es- 
cape the  attack  of  an  enemy,  which  was  pursuing  it  with  superior 
forces  and  was  certain  to  capture  it,  the  neutral  government  could 
not,  without  violating  the  laws  of  neutrality,  allow  it  to  put  to  sea 
again  in  order  to  continue  fighting,  but  must  detain  it  and  permit 
it  to  depart  only  after  the  commander  has  given  his  word  to  take 
no  further  part  in  the  war. 

This  rule  tends  to  reconcile  the  duties  of  humanity  with  the  necessities  of 
war  and  the  rights  of  neutral  states  with  those  of  the  belligerents.  In  regard 
to  the  ship  which  has  entered  a  neutral  port  owing  to  stress  of  weather,  it 
should  be  considered  sufficient  to  prevent  it  from  taking  any  military  arma- 
ment and  to  detain  it  at  least  twenty-four  hours,  in  order  to  prevent  its  en- 
trance into  the  neutral  port  from  constituting  an  operation  of  war.  As  to 
the  ship  which  has  sought  shelter  therein  in  consequence  of  a  battle  and  has 
availed  itself  of  the  protection  of  the  neutral  state  in  order  to  escape  the 
sui)erior  forces  of  the  enemy  pursuing  it,  and  has  thus  avoided  the  impending 
danger  of  capture,  it  must  be  deemed  indispensable  not  to  permit  it  to  put  to 
sea  again  except  on  condition  of  taking  no  further  part  in  the  war.  A  neutral 
which  would  not  only  prevent  a  belligerent  from  pursuing  and  capturing  an 
enemy  ship  in  neutral  territorial  waters,  but  would  allow  such  ship  again  to 
take  an  active  part  in  the  war  would  be  furnishing  a  veritable  military  as- 
.sistance  to  one  of  the  belligerents. 

Coini)are,  for  the  i)rovisions  of  Italian  legislation  ou  this  subject,  the  note 
under  rule  182G. 


654  INTERNATIONAL   LAW   CODIFIED 

PRISONERS    LANDED    AND    PRIZES    ABANDONED    IN    NEUTRAL    PORTS 

1814.  A  neutral  state  should  not  permit  a  ship  of  war  which  by 
unavoidable  circumstances  is  compelled  to  enter  one  of  its  ports  to 
land  piisoners  of  war  therein  unless  they  are  set  free  and  permitted 
freely  to  depart. 

1815.  Should  a  belligerent  vessel,  owing  to  unavoidable  causes, 
be  compelled  to  abandon  in  a  neutral  port  or  in  neutral  territory 
prizes  which  it  has  captured,  the  neutral  government  ought  to 
provide  for  the  custody  of  the  goods  so  abandoned  and  place  them 
at  the  disposal  of  their  owners,  unless  the  goods  are  contraband 
of  war.  In  that  case,  the  goods  would  have  to  be  kept  in  custody 
until  the  end  of  the  war  and  should  only  be  placed  at  the  disposal 
of  their  owners  or  of  the  captors  in  conformity  with  the  decision 
of  the  International  Prize  Court. 

DILIGENCE    REQUIRED    IN    THE    OBSERVANCE    OF    THE    DUTIES    OF 

NEUTRALITY 

1816.  Any  government  of  a  neutral  state  which  has  not  dis- 
played perfect  fairness  and  good  faith  in  the  strict  observance  of 
the  duties  of  neutrality,  and  that  due  diligence  which  is  required 
by  the  nature  of  things  and  the  necessities  of  war  shall  be  held  re- 
sponsible for  any  consequences  of  its  failure  to  exercise  due  dili- 
gence. 

1817.  The  diligence  required  of  any  government  shall  he  de- 
termined with  due  regard  to  the  circumstances  which  might  render 
more  or  less  imminent  the  danger  of  violating  the  duties  of  neutral- 
ity and  the  possibility  of  preventing  injury  to  one  or  other  of  the 
belligerents. 

Its  responsibility  would  be  in  direct  proportion  to  the  means 
at  its  disposal  to  prevent  the  violation  or  to  avoid  or  diminish  the 
resulting  injury  to  a  belligerent,  and  the  degree  of  diligence  dis- 
played in  adopting  them. 

(Compare  rules  604  et  seq.) 

FAULTS   RESULTING   FROM   THE   LACK    OF   DILIGENCE 

1818.  Ignorance  on  the  part  of  a  government  of  an  act  accom- 
plished or  planned  by  private  individuals  with  the  intention  of  vio- 


neutrality:  its  rights  and  duties  655 

lating  the  duties  of  neutrality,  cannot  bar  its  liability  for  lack 
of  diligence  on  its  part  whenever  such  ignorance  may,  under  the 
circumstances,  be  considered  as  malevolent  or  grossly  negligent. 

1819.  No  neutral  government  shall  be  deemed  guilty  of  a  want 
of  due  diligence  for  not  having  adopted  extraordinary  precautions 
for  the  protection  of  the  interests  of  the  belligerents  by  limiting 
the  liberty  of  its  citizens  beyond  the  bounds  permitted  by  the  in- 
stitutions of  the  country.  Nevertheless,  the  present  powerlessness 
of  a  neutral  government  in  preventing  a  violation  of  its  duties 
of  neutrality  shall  not  be  sufficient  to  bar  its  liability,  whenever 
it  is  shown  to  have  failed  in  due  time  properly  to  provide  the  legal 
means  calculated  to  prevent  private  individuals  from  violating  the 
duties  of  neutrality. 

ARBITRAL   AWARD   ON   THE   QUESTION   OF  DILIGENCE 

1820.  The  determination  of  the  degree  of  diligence  which  a 
government  is  bound  to  observe  in  the  faithful  discharge  of  its 
duties  of  neutrality  is  an  unusually  complex  question  which  must 
be  referred  to  a  tribunal  of  arbitration. 

For  a  further  discussion  of  these  rules,  see  Fiore:  Trattato  di  dirilto  inler- 
nazionale  pubblico,  III,  3d  ed.,  §§  1672  et  seq.,  p.  384. 

DUTIES   OF   BELLIGERENTS   TOWARD   NEUTRALS 

1821.  The  belligerents  are  bound  to  consider  all  states  which, 
at  the  outbreak  of  war,  have  made  a  declaration  of  neutrality  or 
have  fulfilled  the  conditions  required  to  be  legally  deemed  neutrals, 
as  enjoying  all  the  rights  of  neutrals  in  time  of  peace,  subject 
to  the  restrictions  imposed  in  accordance  with  the  "common"  law 
in  case  of  war. 

They  nmst  also  abstain  from  applying  the  laws  of  war  to  the 
citizens  of  neutral  states  not  engaging  hi  hostile  acts,  and  consider 
them  under  the  protection  of  the  law  in  force  in  time  of  peace 
whenever  they  honestly  and  in  good  faith  perform  the  duties  of 
neutrality  and  do  not  infringe  the  laws  and  usages  of  war, 

1822.  The  belligerents  shall  have  no  right  by  virtue  of  the  ex- 
ceptional law  of  war  to  capture  neutral  goods  on  board  an  enemy 
ship,  except  in  case  of  contraband  of  war.    (See  rules  1870  ei  seq.) 


650  INTERNATIONAL  LAW   CODIFIED 

1823.  It  shall  not  be  permissible  to  treat  a  neutral  vessel  as  an 
enemy  or  commit  against  it  any  act  of  hostility,  when,  by  its  papers, 
the  vessel  is  able  to  establish  its  legal  status  as  a  neutral,  and  when 
there  shall  be  no  well-founded  or  reasonable  ground  to  suspect  the 
genuineness  of  the  documents  produced,  or  to  raise  the  presumption 
that  the  vessel  has  forfeited  its  rights  as  a  neutral. 

1824.  In  principle,  it  should  be  deemed  unlawful  to  capture 
enemy  goods  on  board  a  neutral  ship,  unless  they  be  contraband  of 
war,  even  with  respect  to  states  which  did  not  sign  the  treaty  of 
1856. 

1825.  Capturmg  an  enemy  ship  in  neutral  territorial  waters 
shall  hkewise  be  deemed  unlawful,  and  the  belligerent  shall  be 
bound  to  recognize  the  right  of  the  neutral  state  to  request  that 
the  prize  be  set  free.    Cf.  Rule  1803. 

1826.  The  belligerents  have  no  right  in  time  of  war  to  modify 
the  rules  governing  peaceful  commerce,  but  it  is  their  duty  to  allow 
the  citizens  of  neutral  states  to  navigate  their  vessels  and  conduct 
commercial  relations  with  perfect  freedom  and  security  under  the 
protection  of  the  "common"  law  in  force  in  time  of  peace  and 
of  treaties,  subject  only  to  the  restrictions  arising  out  of  effective 
blockade  and  the  prohibition  of  carrying  contraband  of  war. 

The  Italian  legislature  has  determined  the  rights  and  duties  of  neutrality 
by  certain  provisions  of  the  Merchant  Marine  Code  of  October  24,  1877, 
Chapter  III,  Title  IV,  Part  I.    These  provisions  read: 

Art.  246. — In  the  event  of  war  between  Powers  with  which  Italy  remains 
neutral,  no  privateers  or  ships  of  war  shall  be  received  in  the  ports,  roadsteads 
or  the  shores  of  the  State,  except  owing  to  stress  of  weather. 

They  shall  be  required  to  leave  as  soon  as  the  danger  is  over. 

No  belligerent  war-vessel  or  privateer  shall  be  permitted  to  sojourn  more 
than  twenty-four  hours  in  a  port,  in  a  roadstead  or  on  the  shores  of  the  State 
or  in  adjacent  waters,  even  if  it  should  come  alone,  unless  it  is  compelled  to 
put  in  under  stress  of  weather,  damage  or  lack  of  provisions  necessary  for  the 
security  of  navigation. 

In  no  case  shall  they  be  allowed,  in  the  ports,  in  the  roadsteads  or  on  the 
shores  of  the  State,  to  sell,  exchange,  barter  or  give  away  captured  goods. 

Art.  247.— The  vessels  of  war  of  a  friendly  Power,  even  belligerent,  shall 
be  allowed  to  enter  and  sojourn  in  the  ports,  in  the  roadsteads  and  on  the 
shores  of  the  State,  provided  their  mission  is  exclusively  scientific. 

Art.  248. — In  no  case  shall  a  belligerent  vessel  be  permitted  to  make  use 
of  an  Italian  port  for  the  purposes  of  war,  or  to  obtain  a  supply  of  arms  or 
munitions. 

It  shall  not  be  permitted,  under  pretext  of  repairs,  to  undertake  works  likely 
to  increase  in  any  way  its  military  power. 

Art.  249. — Vessels  of  war  and  privateers  shall  only  be  supplied  with  the 


neutrality:  its  rights  and  duties  657 

provisions  and  commodities  and  means  of  repair  necessary  for  the  subsistence 
of  their  crew  and  the  security  of  their  navigation. 

BeUigerent  war-vessels  or  privateers  wishing  to  take  in  coal  shall  be  allowed 
to  do  so  only  within  twenty-four  hours  after  their  arrival. 

Art.  250. — When  war  vessels,  privateers  or  merchant  ships  of  the  two 
belligerents  shall  simultaneous!}'  be  in  a  port,  a  roadstead  or  on  the  coast  of 
the  State,  there  must  be  an  interval  of  at  least  twenty-four  hours  between 
the  departure  of  any  vessel  of  one  belligerent  and  the  departure  of  any  vessel 
of  the  other  belligerent. 

This  interval  may  be  increased  according  to  circumstances  by  the  maritime 
authorities  of  the  place. 

Art.  251. — Prize  capture  and  any  act  of  hostility  between  vessels  of  bel- 
ligerent nations  in  territorial  waters  and  in  the  sea  adjacent  to  the  islands  of 
the  State  shall  constitute  a  violation  of  national  territory. 


RIGHTS    AND    DUTIES    OF    NEUTRALITY    ACCORDING    TO    THE    HAGUE 

CONVENTION   OF    1907 

1827.  The  states  represented  at  the  Hague  Conference  of  1907 
and  those  which  shall  subsequently  adhere  to  the  General  Act  shall 
be  bound  to  recognize  the  compulsor}^  legal  force  of  the  conven- 
tional rules,  adopted  in  common  agreement,  concerning  the  rights 
and  duties  of  neutrality  during  war  on  land  and  on  sea,  provided 
the  states  which  have  signed  the  General  Act  are  parties  to  the 
war,  and  subject  to  the  reservations  made  by  individual  signa- 
tory states. 

The  rules  herein  mentioned  are  founded  in  the  Vth  and  in  the  Xlllth  con- 
ventions of  the  General  Act  of  October  18,  1907.  The  former  was  signed  with- 
out reservation  by  all  the  states,  except  the  Argentine  Republic  and  Great 
Britain,  which  alone  made  reservations.  The  latter,  signed  without  reserva- 
tions by  the  majority  of  the  states,  was  signed  with  reservations  by  Germany, 
the  Dominican  Republic,  Great  Britain,  Japan,  Persia,  Siam  and  Turkey. 
The  text  of  this  Convention  is  as  follows: 


WAR  ON  LAND  (CONVENTION   V) 
CHAPTER  I 

BIGHTS   AND   DUTIES   OF   NEUTRAL   POWERS 

Art.  1.  The  territory  of  neutral  Powers  is  inviolable. 

Art.  2.  Belligerents  are  forbidden  to  move  troops  or  convoys 
of  either  munitions  of  war  or  supplies  across  the  territory  of  a 
neutral  Power. 

Art.  3.  Belligerents  are  likewise  forbidden  to — 

(a)  Erect  on  territory  of  a  neutral  Power  a  wireless  telegraphy 
station  or  other  apparatus  for  the  purpose  of  communicating  with 
belligerent  forces  on  land  or  sea; 

(6)  Use  any  installation  of  this  kind  established  by  them  before 
the  war  on  the  territory  of  a  neutral  Power  for  purely  military 
purposes,  and  which  has  not  been  opened  for  the  service  of  public 
messages. 

Art.  4.  Corps  of  combatants  cannot  be  formed  nor  recruiting 
agencies  opened  on  the  territory  of  a  neutral  Power  to  assist  the 
belligerents. 

Art.  5.  A  neutral  Power  must  not  allow  any  of  the  acts  referred 
to  in  Articles  2  to  4  to  occur  on  its  territory. 

It  is  not  called  upon  to  punish  acts  in  violation  of  its  neutrality 
unless  the  said  acts  have  been  committed  on  its  own  territory. 

Art.  6.  The  responsibility  of  a  neutral  Power  is  not  engaged 
by  the  fact  of  persons  crossing  the  frontier  separately  to  offer 
their  services  to  one  of  the  belligerents. 

Art.  7.  A  neutral  Power  is  not  called  upon  to  prevent  the  export 
or  transport,  on  behalf  of  one  or  other  of  the  belligerents,  of  arms, 
munitions  of  war,  or,  in  general,  of  anything  which  can  be  of  use 
to  an  army  or  a  fleet. 

Art.  8.  A  neutral  Power  is  not  called  upon  to  forbid  or  restrict 
the  use  on  behalf  of  the  belligerents  of  telegraph  or  telephone  cables 
or  of  wireless  telegraphy  apparatus  belonging  to  it  or  to  companies 
or  private  individuals. 

658 


WAR    ON    LAND    (CONVENTION    v)  659 

Art.  9.  Every  measure  of  restriction  or  prohibition  taken  by  a 
netitral  Power  in  regard  to  the  matters  referred  to  in  Articles  7  and 
8  must  be  impartially  applied  by  it  to  both  belligerents. 

A  neutral  Power  must  see  to  the  same  obligation  being  observed 
by  companies  or  private  individuals  owning  telegraph  or  telephone 
cables  or  wireless  telegraphy  apparatus. 

Art.  10.  The  fact  of  a  neutral  Power  resisting,  even  by  force, 
attempts  to  violate  its  neutrality  cannot  be  regarded  as  a  hostile 
act. 

CHAPTER  II 

BELLIGERENTS     INTERNED     AND     WOUNDED     TENDED     IN     NEUTRAL 

TERRITORY 

Art.  11.  A  neutral  Power  which  receives  on  its  territory  troops 
belonging  to  the  belHgerent  armies  shall  intern  them,  as  far  as 
possible,  at  a  distance  from  the  theatre  of  war. 

It  may  keep  them  in  camps  and  even  confine  them  in  fortresses 
or  in  places  set  apart  for  this  purpose. 

It  shall  decide  whether  officers  can  be  left  at  liberty  on  giving 
their  parole  not  to  leave  the  neutral  territory  without  permission. 

Art.  12.  In  the  absence  of  a  special  convention  to  the  contrary, 
the  neutral  Power  shall  supply  the  interned  with  the  food,  clothing, 
and  relief  required  by  humanity. 

At  the  conclusion  of  peace  the  expenses  caused  by  internment 
shall  be  made  good. 

Art.  13.  A  neutral  Power  which  receives  escaped  prisoners  of 
war  shall  leave  them  at  liberty.  If  it  allows  them  to  remain  on  its 
territory  it  may  assign  them  a  place  of  residence. 

The  same  rule  applies  to  prisoners  of  war  brought  by  troops 
taking  refuge  in  the  territory  of  a  neutral  Power. 

Art.  14.  A  neutral  Power  may  authorize  the  passage  through  its 
territory  of  the  sick  and  wounded  belonging  to  the  belligerent 
armies,  on  condition  that  the  trains  bringing  them  shall  carry 
neither  personnel  or  war  material.  In  such  a  case,  the  neutral 
Power  is  bound  to  take  whatever  measures  of  safety  and  control 
are  necessary  for  the  purpose. 

The  sick  or  wounded  brought  under  these  conditions  into  neutral 


660  INTERNATIONAL   LAW   CODIFIED 

territory  by  one  of  the  belligerents,  and  belonging  to  the  hostile 
party,  must  be  guarded  by  the  neutral  Power  so  as  to  ensure  their 
not  taking  part  again  in  the  military  operations.  The  same  duty 
shall  devolve  on  the  neutral  State  with  regard  to  wounded  or  sick 
of  the  other  army  who  may  be  committed  to  its  care. 

Art.  15.  The  Geneva  Convention  applies  to  sick  and  wounded 
interned  in  neutral  territory. 

CHAPTER  III 

NEUTRAL   PERSONS 

Art.  16.  The  nationals  of  a  State  which  is  not  taking  part  in 
the  war  are  considered  as  neutrals. 

Art.  17.  A  neutral  cannot  avail  himself  of  his  neutrality: 

(a)  If  he  commits  hostile  acts  against  a  belligerent; 

(6)  If  he  commits  acts  in  favor  of  a  belligerent,  particularly  if 
he  voluntarily  enlists  in  the  ranks  of  the  armed  force  of  one  of  the 
parties. 

In  such  a  case,  the  neutral  shall  not  be  more  severely  treated  by 
the  belligerent  as  against  whom  he  has  abandoned  his  neutrality 
than  a  national  of  the  other  belligerent  State  could  be  for  the  same 
act. 

Art.  18.  The  following  acts  shall  not  be  considered  as  committed 
in  favor  of  one  belligerent  in  the  sense  of  Article  17,  letter  (6) : 

(a)  Supplies  furnished  or  loans  made  to  one  of  the  belligerents, 
provided  that  the  person  who  furnishes  the  supplies  or  who  makes 
the  loans  lives  neither  in  the  territory  of  the  other  party  nor  in 
the  territory  occupied  by  him,  and  that  the  supplies  do  not  come 
from  these  territories; 

(b)  Services  rendered  in  matters  of  police  or  civil  administra- 
tion. 

CHAPTER  IV 

RAILWAY   MATERIAL 

Art.  19.  Railway  material  coming  from  the  territory  of  neutral 
Powers,  whether  it  be  the  property  of  the  said  Powers  or  of  com- 
panies or  private  persons,  and  recognizable  as  such,  shall  not  be 


WAR   ON   LAND    (CONVENTION   v)  661 

requisitioned  or  utilized  by  a  belligerent  except  where  and  to  the 
extent  that  it  is  absolutely  necessary.  It  shall  be  sent  back  as 
soon  as  possible  to  the  country  of  origin. 

A  neutral  Power  may  likewise,  in  case  of  necessity,  retain  and 
utilize  to  an  equal  extent  material  coming  from  the  territory  of 
the  belligerent  Power. 

Compensation  shall  be  paid  by  one  party  or  the  other  in  pro- 
portion to  the  material  used,  and  to  the  period  of  usage. 


NAVAL  WAR   (CONVENTION  XIII) 

Art.  1.  Belligerents  are  bound  to  respect  the  sovereign  rights  of 
neutral  Powers  and  to  abstain,  in  neutral  territory  or  neutral 
waters,  from  any  act  which  would,  if  knowingly  permitted  by  any 
Power,  constitute  a  violation  of  neutraUty. 

Art.  2.  Any  act  of  hostility,  including  capture  and  the  exercise 
of  the  right  of  search,  committed  by  belligerent  war-ships  in  the 
territorial  waters  of  a  neutral  Power,  constitutes  a  violation  of 
neutrality  and  is  strictly  forbidden. 

Art.  3.  When  a  ship  has  been  captured  in  the  territorial  waters  of 
a  neutral  Power,  this  Power  must  employ,  if  the  prize  is  still  within 
its  jurisdiction,  the  means  at  its  disposal  to  release  the  prize  with 
its  officers  and  crew,  and  to  intern  the  prize  crew. 

If  the  prize  is  not  in  the  jurisdiction  of  the  neutral  Power,  the 
captor  Government,  on  the  demand  of  that  Power,  must  hberate 
the  prize  with  its  officers  and  crew. 

Art.  4.  A  prize  court  cannot  be  set  up  by  a  belligerent  on  neu- 
tral territory  or  on  a  vessel  in  neutral  waters. 

Art.  5.  Belligerents  are  forbidden  to  use  neutral  ports  and  waters 
as  a  base  of  naval  operations  against  their  adversaries,  and  in 
particular  to  erect  wireless  telegraphy  stations  or  any  apparatus 
for  the  purpose  of  communicating  with  the  belligerent  forces  on 
land  or  sea. 

Art.  6.  The  supply,  in  any  manner,  directly  or  indirectly,  by  a 
neutral  Power  to  a  belligerent  Power,  of  war-ships,  ammunition, 
or  war  material  of  any  kind  whatever,  is  forbidden. 

Art.  7.  A  neutral  Power  is  not  bound  to  prevent  the  export  or 
transit,  for  the  use  of  either  belligerent,  of  arms,  ammunitions,  or 
in  general,  of  anything  which  could  be  of  use  to  an  army  or  fleet. 

Art.  8.  A  neutral  Government  is  bound  to  employ  the  means  at 
its  disposal  to  prevent  the  fitting  out  or  arming  of  any  vessel  within 
its  jurisdiction  which  it  has  reason  to  believe  is  intended  to  cruise, 
or  engage  in  hostile  operations,  against  a  Power  with  which  that 
Government  is  at  peace.    It  is  also  bound  to  display  the  same 

662 


NAVAL    WAR   (CONVENTION   Xlllj  063 

vigilance  to  prevent  the  deptirture  from  its  jurisdiction  of  any 
vessel  intended  to  cruise,  or  engage  in  hostile  operations,  which 
had  been  adapted  entirely  or  partly  within  the  said  jurisdiction 
for  use  in  war. 

Art.  9.  A  neutral  Power  must  apply  impartially  to  the  two  bel- 
ligerents the  conditions,  restrictions,  or  prohibitions  made  by  it 
in  regard  to  the  admission  into  its  ports,  roadsteads,  or  territorial 
waters,  of  belligerent  war-ships  or  of  their  prizes. 

Nevertheless,  a  neutral  Power  may  forbid  a  belligerent  vessel 
which  has  failed  to  conform  to  the  orders  and  regulations  made  by 
it,  or  which  has  violated  neutrality,  to  enter  its  ports  or  roadsteads. 

Art.  10.  The  neutrality  of  a  Power  is  not  affected  by  the  mere 
passage  through  its  territorial  waters  of  war-ships  or  prizes  be- 
longing to  belligerents. 

Art.  11.  A  neutral  Power  may  allow  belligerent  war-ships  to 
employ  its  licensed  pilots. 

Art.  12.  In  the  absence  of  special  provisions  to  the  contrary  in 
the  legislation  of  a  neutral  Power,  belligerent  war-ships  are  not 
permitted  to  remain  in  the  ports,  roadsteads,  or  territorial  waters 
of  the  said  Power  for  more  than  twenty-four  hours,  except  in  the 
cases  covered  by  the  present  convention. 

Art.  13.  If  a  Power  which  has  been  informed  of  the  outbreak 
of  hostilities  learns  that  a  belligerent  war-ship  is  in  one  of  its  ports 
or  roadsteads,  or  in  its  territorial  waters,  it  must  notify  the  said 
ship  to  depart  within  twenty-four  hours  or  within  the  time  pre- 
scribed by  local  regulations. 

Art.  14.  A  belligerent  war-ship  may  not  prolong  its  stay  in  a 
neutral  port  beyond  the  permissible  time  except  on  account  of 
damage  or  stress  of  weather.  It  must  depart  as  soon  as  the  cause 
of  the  delay  is  at  an  end. 

The  regulations  as  to  the  question  of  the  length  of  time  which 
these  vessels  may  remain  in  neutral  ports,  roadsteads,  or  waters, 
do  not  apply  to  war-ships  devoted  exclusively  to  religious,  scientific, 
or  philanthropic  purposes. 

Art.  15.  In  the  absence  of  special  provisions  to  the  contrary 
in  the  legislation  of  a  neutral  Power,  the  maximum  number  of 
war-ships  belonging  to  a  belligerent  which  may  be  in  one  of  the 
ports  or  roadsteads  of  that  Power  simultaneously  shall  be  three. 

Art.   16.  When  war-ships   belonging   to  both  belligerents  are 


664  INTERNATIONAL   LAW    CODIFIED 

present  simultaneously  in  a  neutral  port  or  roadstead,  a  period  of 
not  less  then  twenty-four  hours  must  elapse  between  the  departure 
of  the  ship  belonging  to  one  belligerent  and  the  departure  of  the 
ship  belonging  to  the  other. 

The  order  of  departure  is  determined  by  the  order  of  arrival, 
unless  the  ship  which  arrived  first  is  so  circumstanced  that  an  ex- 
tension of  its  stay  is  permissible. 

A  beUigerent  war-ship  may  not  leave  a  neutral  port  or  road- 
stead until  twenty-four  hours  after  the  departure  of  a  merchant 
ship  flying  the  flag  of  its  adversary. 

Art.  17.  In  neutral  ports  and  roadsteads  belligerent  war-ships 
may  only  carry  out  such  repairs  as  are  absolutely  necessary  to 
render  them  seaworthy,  and  may  not  add  in  any  manner  what- 
soever to  their  fighting  force.  The  local  authorities  of  the  neutral 
Power  shall  decide  what  repairs  are  necessary,  and  these  must 
be  carried  out  with  the  least  possible  delay. 

Art.  18.  Belligerent  war-ships  may  not  make  use  of  neutral 
ports,  roadsteads,  or  territorial  waters  for  replenishing  or  increas- 
ing their  supplies  of  war  material  or  their  armament,  or  for  complet- 
ing their  crews. 

Art.  19.  Belligerent  war-ships  may  only  revictual  in  neutral 
ports  or  roadsteads  to  bring  up  their  supplies  to  the  peace  standard. 

Similarly  these  vessels  may  only  ship  sufficient  fuel  to  enable 
them  to  reach  the  nearest  port  in  their  own  country.  They  may, 
on  the  other  hand,  fill  up  their  bunkers  built  to  carry  fuel,  when  in 
neutral  countries  which  have  adopted  this  method  of  determining 
the  amount  of  fuel  to  be  supplied. 

If,  in  accordance  with  the  law  of  the  neutral  Power,  the  ships 
are  not  supplied  with  coal  within  twenty-four  hours  of  their  ar- 
rival, the  permissible  duration  of  their  stay  is  extended  by  twenty- 
four  hours. 

Art.  20.  Belligerent  war-ships  which  have  shipped  fuel  in  a  port 
belonging  to  a  neutral  Power  may  not  within  the  succeeding  three 
months  replenish  their  supply  in  a  port  of  the  same  Power. 

Art.  21.  A  prize  may  only  be  brought  into  a  neutral  port  on 
account  of  unseaworthiness,  stress  of  weather,  or  want  of  fuel  or 
provisions. 

It  must  leave  as  soon  as  the  circumstances  which  justified  its 
entry  are  at  an  end.    If  it  does  not,  the  neutral  Power  must  order 


NAv.\L  WAR  (convention  xiii)  665 

it  to  leave  at  once;  should  it  fail  to  obe}',  the  neutral  Power  must 
employ  the  means  at  its  disposal  to  release  it  with  its  officers  and 
crew  and  to  intern  the  prize  crew. 

Art.  22.  A  neutral  Power  must,  similarly,  release  a  prize  brought 
into  one  of  its  ports  under  circumstances  other  than  those  referred 
to  in  Article  21. 

Art.  23.  A  neutral  Power  may  allow  prizes  to  enter  its  ports 
and  roadsteads,  whether  under  convoy  or  not,  when  they  are 
brought  there  to  be  sequestrated  pending  the  decision  of  a  Prize 
Court.    It  may  have  the  prize  taken  to  another  of  its  ports. 

If  the  prize  is  convoyed  by  a  war-ship,  the  prize  crew  may  go  on 
board  the  convoying  ship. 

If  the  prize  is  not  under  convoy,  the  prize  crew  are  left  at  liberty. 

Art.  24.  If,  notwithstanding  the  notification  of  the  neutral 
Power,  a  belligerent  ship  of  war  does  not  leave  a  port  where  it  is 
not  entitled  to  remain,  the  neutral  Power  is  entitled  to  take  such 
measures  as  it  considers  necessary  to  render  the  ship  incapable  of 
taking  the  sea  during  the  war,  and  the  commanding  officer  of  the 
ship  must  facilitate  the  execution  of  such  measures. 

When  a  belligerent  ship  is  detained  by  a  neutral  Power,  the 
officers  and  crew  are  likewise  detained. 

The  officers  and  crew  thus  detained  may  be  left  in  the  ship  or 
kept  either  on  another  vessel  or  on  land,  and  may  be  subjected 
to  the  measures  of  restriction  which  it  may  appear  necessary  to 
impose  upon  them.  A  sufficient  number  of  men  for  looking  after 
the  vessel  must,  however,  be  always  left  on  board. 

The  officers  may  be  left  at  liberty  on  giving  their  word  not  to 
quit  the  neutral  territory  without  permission. 

Art.  25.  A  neutral  Power  is  bound  to  exercise  such  surveillance 
as  the  means  at  its  disposal  allow  to  prevent  any  violation  of  the 
provisions  of  the  above  Articles  occurring  in  its  ports  or  roadsteads 
or  in  its  waters. 

Art.  26.  The  exercise  by  a  neutral  Power  of  the  rights  laid  down 
in  the  present  Convention  can  under  no  circumstances  be  con- 
sidered as  an  unfriendly  act  by  one  or  other  belligerent  who  has 
accepted  the  articles  relating  thereto. 

Art.  27.  The  contracting  Powers  shall  communicate  to  each 
other  in  due  course  all  laws,  proclamations,  and  other  enactments 
regulating  in  their  respective  countries  the  status  of  belligerent 


666  INTERNATIONAL   LAW   CODIFIED 

war-ships  in  their  ports  and  waters,  by  means  of  a  communication 
addressed  to  the  Government  of  the  Netherlands,  and  forwarded 
immediately  by  that  Government  to  the  other  contracting  Powers. 

Art.  28.  The  provisions  of  the  present  Convention  do  not  apply 
except  to  the  contracting  Powers,  and  then  only  if  all  the  bel- 
ligerents are  parties  to  the  convention. 


TITLE  XIX 

OF  BLOCKADE  AND  ITS  EFFECTS  WITH  RESPECT  TO 

NEUTRALS 

blockade:  places  which  may  be  subjected  thereto 

1828.  A  blockade  is  an  operation  of  war  consisting  in  the  in- 
vestment of  any  portion  of  the  enemy  coast  effected  by  means  of 
a  naval  force  for  the  purpose  of  cutting  off  all  communication  by 
sea,  and  maintained  by  ships  in  sufficient  number  really  and  ef- 
fectively to  prevent,  by  force,  any  ship  from  crossing  the  line  of 
blockade  without  running  the  risk  of  being  hit  by  the  guns  of 
stationary  vessels. 

1829.  A  belligerent  may  blockade  not  only  military  or  for- 
tified ports  but  also  commercial  ports,  roadsteads,  gulfs  and  any 
portion  of  the  enemy  shore  with  which  he  intends  to  interrupt  all 
communication. 

1830.  According  to  the  general  principles  of  international  law 
and  to  conventional  rules,  the  mouths  of  international  rivers, 
straits — even  when  both  shores  belong  to  the  enemy  state — and 
interoceanic  canals  cannot  be  subjected  to  blockade. 

The  purpose  of  this  rule  is  to  establish  that,  aside  from  international  agree- 
ments relating  to  the  neutrality  of  straits  and  interoceanic  canals,  the  Suez 
Canal,  for  example,  the  right  of  a  belligerent  to  blockade  such  straits  and 
canals  and  the  mouths  of  international  rivers  must  be  considered  as  forbidden 
by  the  principles  of  the  "common"  law  of  nations.  Were  it  otherwise,  the 
result  would  be  that  an  operation  of  war  directed  against  the  enemy  would 
equally  affect  neutrals  entitled  to  employ  these  means  of  communication  for 
peaceful  purposes. 

1831.  A  belligerent  shall  have  no  right  to  subject  to  blockade 
his  own  ports  and  to  apply  thereto  the  laws  of  war  concerning 
the  blockade  of  enemy  ports.  He  shall  have  the  right,  however, 
during  war,  to  decree  the  closing  of  one  or  more  of  his  ports  and  to 
use  force  to  prevent  neutral  ships  from  entering  them. 

If,  however,  national  ports  have  fallen  into  the  hands  of  the 
enemy,  the  belligerent  may,  during  their  military  occupation  by 

667 


068  INTERNATIONAL    LAW    CODIFIED 

the  enemy,  effect  their  blockade  under  the  normal  conditions  of 
making  it  effective  and  obhgatory  in  conformity  with  the  following 
rules  governing  the  blockade  of  hostile  ports. 

WHEN   IS   BLOCKADE   LEGALLY   ESTABLISHED? 

1832.  A  blockade  can  only  be  considered  as  existing  de  facto 
when  it  is  real  and  effective.  It  can  be  so  regarded  only  when  all 
the  ships  composing  the  blockading  squadron  are  stationed  per- 
manently so  as  to  form  a  semi-circle  before  the  blockaded  port  or 
coast,  and  to  make  it,  in  all  probabilities,  impossible  for  a  ship 
to  pass  the  line  of  blockade  without  exposing  itself  to  grave  dangers 
and  to  imminent  peril  while  passing  under  the  fire  of  guns. 

1833.  As  an  operation  of  war,  a  blockade  shall  be  deemed  a 
warrant  to  confer  upon  the  belligerent  the  rights  flowing  from  it 
according  to  the  laws  and  customs  of  war — not  only  as  regards  the 
enemy,  but  even  as  regards  neutrals,  with  power  in  case  of  viola- 
tion, to  punish  them — on  condition,  however,  that  it  shall  be  real 
and  effective  under  the  provisions  of  the  preceding  rule. 

The  foregoing  rules,  as  we  have  formulated  them,  tend  to  dissipate  any  uncer- 
tainty as  to  the  existence  of  the  blockade  and  to  establish  the  fact  that  it  is  to 
be  considered  as  legally  existing  only  after  the  belligerent  has  really  invested 
the  port,  roadstead,  or  coast  of  the  enemy,  by  stationing  before  it  a  number 
of  ships  forming  a  veritable  semi-circle,  in  order  to  prevent  any  vessel  from 
passing  through  the  line  of  blockade  without  liability  to  being  fired  upon  by 
stationary  ships. 

1834.  The  blockade  shall  not  cease  to  be  real  and  effective 
owing  to  the  fact  that  one  or  more  ships  have  succeeded,  by  taking 
great  risks,  in  running  the  blockade;  it  shall  be  sufficient,  in  order 
that  it  may  be  so  considered,  that  this  line  may  not  be  normally 
crossed  without  danger  of  being  hit  by  the  guns  of  the  stationary 
ships. 

This  rule  tends  to  avoid  all  exaggeration  as  to  the  reality  and  effectiveness 
of  the  blockade.  If  the  fact  that  one  or  more  ships  have  been  able,  by  way 
of  exception  only,  to  force  the  blockade  line  should  suffice  to  annul  its  legal 
existence,  the  result  would  be  that  the  most  effective  blockade  could  be  disre- 
garded. It  often  happens,  indeed,  that  steamships  of  great  speed,  commanded 
by  daring  captains,  escape  the  surveillance  of  the  blockading  squadron,  owing 
to  the  darkness  and  to  weather  conditions.  This  does  not  modify  the  effec- 
tiveness of  the  blockade.  But  the  case  would  be  different  should  ships  re- 
peatedly cross  the  line  without  danger. 


OF    BLOCKADE    AUD    NEUTRALS  669 


BLOCKADE   NOTIFIED    ONLY   THROUGH   DIPLOMATIC    CHANNELS 

1835.  A  blockade,  declared  and  notified  onty  through  diplo- 
matic channels,  in  accordance  with  rule  1837  shall  only  be  con- 
sidered as  in  force  and  binding  upon  neutrals,  if  real  and  effective, 
notwithstanding  the  fact  that  the  belligerent  who  has  proclaimed 
and  notified  it  has  a  naval  force  sufficient  to  enforce  it  effectively. 

This  rule  tends  to  exclude  any  system  of  blockade  which  is  not  real  and 
effective  in  accordance  with  the  foregoing  rules.  In  order  to  legitimate  what 
is  known  as  "paper  blockade,"  or  fictitious  blockade,  or  blockade  by  diplo- 
matic notification,  it  was  contended  that  the  belligerent  did  not  need  to  have 
ships  stationed  permanently  to  enforce  it;  but  that  it  should  be  sufficient  for 
him  to  have  notified  the  blockade  and  to  have  a  fleet  adequate  to  enforce  it 
and  cause  it  to  be  respected.  This  is  how  the  system  of  "cruiser  blockade" 
was  introduced.  Nevertheless,  under  the  rule  established  by  the  Declaration 
signed  at  Paris  in  1856,  no  belligerent  can  avail  himself  of  the  rights  of  war 
resulting  from  a  blockade  unless  he  in  fact  occupies  the  littoral  waters  of  the 
blockaded  coasts  bj'  a  permanent  fleet,  which  is  in  fact  capable  of  preventing 
all  communication  with  the  coasts. 


TEMPORARY    SUSPENSION    OF   THE    INVESTMENT 

1836.  Temporary  suspension  of  the  investment  for  any  cause 
whatever  suspends  the  application  of  the  laws  of  war  consequent 
upon  blockade  for  the  period  during  which  the  real  and  effective 
investment  ceases  to  e.xist. 

The  object  of  this  rule  is  completely  to  dismiss  the  idea  that  a  belligerent 
may  impose  the  laws  of  blockade  and  apply  them  without  a  real  and  efTectivc; 
occupation.  In  view  of  the  fact  that  everything  depends  upon  such  occupa- 
tion, it  naturally  follows  that  when  it  comes  to  an  end,  the  application  of  the 
laws  of  Ijlockade  nmst  cease;  that  when  it  is  suspended,  the  application,  of 
these  laws  must  likewise  be  suspended.  Ships  hound  for  a  blockaded  coast 
which  do  not  find  before  them  the  blockading  fleet,  cannot  be  compelled  to 
ascertain  whether  the  investment  has  ceased,  through  the  final  cessation  of 
the  blockade  or  for  any  other  cause.  If  the  blockade  does  not  exist  in  fact, 
the  laws  relating  thereto  cannot  be  applied. 


DIPLOMATIC   NOTIFICATION   OF   THE    BLOCKADE 

1837.  A  belligerent  intending  to  blockade  a  port  or  a  coast 
must  give  public  notice  of  his  intention  to  do  so  through  the 
channels  of  diplomacy,  indicate  the  port  and  coast  he  intends  to 
blockade  and  state  the  day  on  which  the  investment  is  to  begin, 


670  INTERNATIONAL   LAW   CODIFIED 

allowing  neutral  ships  a  reasonable  time  to  complete  commercial 
transactions  in  progress  in  the  blockaded  places  and  subsequently 
to  leave  them  with  full  security. 

The  omission  of  such  diplomatic  notification  shall  not  suffice 
to  deprive  of  its  legality  a  blockade  which  is  in  fact  real  and  effect- 
ive and  has  been  specially  notified  under  the  provisions  of  the 
following  rule. 

SPECIAL  NOTIFICATION  OF  THE   BLOCKADE 

1838.  The  special  notification  of  a  blockade  consists  in  its  official 
declaration  made  by  an  officer  of  the  blockading  squadron  to  the 
captain  or  master  of  a  neutral  ship  bound  for  the  blockaded  coast 
or  port.  This  declaration  must  be  transcribed  in  the  ship's  log, 
with  mention  of  the  day  and  hour  when  made  and  determination 
of  the  limits  of  the  blockade,  indicating  both  the  latitude  and  longi- 
tude. 

1839.  A  blockade  shall  not  be  considered  as  in  force  with  all  its 
legal  effects  as  to  a  ship  bound  for  or  wishing  to  leave  the  block- 
aded territory,  after  until  the  special  notification  and  from  the 
time  it  was  entered  in  the  ship's  log. 

TIME   LIMIT   FOR   DEPARTING    FROM    THE   BLOCKADED   PLACE 

1840.  The  commander  of  a  squadron  who  wishes  to  establish 
a  blockade  is  always  bound,  whenever  he  can  do  so  without  serious 
impairment  of  military  operations,  to  notify  it  to  the  representa- 
tives of  neutral  states  residing  within  the  blockaded  zone,  making 
known  to  them  the  day  on  which  the  blockade  is  to  commence  and 
the  time  limit  allowed  to  neutral  ships  to  depart  from  the  block- 
aded place. 

Such  notification  may  be  made  to  the  consuls  of  neutral  states 
(cf.  rule  1845)  and  the  time  for  departure  shall  commence  from  the 
day  such  notification  shall  have  been  made. 

1841.  If,  under  the  treaties  concluded  between  the  blockading 
belligerent  and  the  national  state  of  the  merchant  ships  anchored 
in  the  blockaded  port,  a  period  of  time  has  been  fixed  for  the  de- 
parture of  vessels  in  case  of  blockade,  such  period  of  time  so  stipu- 
lated shall  only  begin  to  run  from  the  day  when  the  commence- 


OF    BLOCKADE   AND    NEUTRALS  671 

ment  of  the  blockade  shall  have  been  notified  to  the  consul  residing 
in  the  blockaded  port. 

In  the  absence  of  an  official  notice  to  the  consuls  of  neutral 
states,  the  time  limit  as  stipulated  in  the  treaties  shall  begin  from 
the  day  the  blockade  shall  have  been  notified  through  diplomatic 
channels.    (Rule  1837.) 


DUTIES  OF  NEUTRALS  IN  CASE  OF  BLOCKADE 

1842.  Neutral  ships  intending  to  observe  the  duties  of  neutrality 
must  recognize  all  the  effects  flowing  from  the  blockade  in  accord- 
ance with  the  laws  of  war,  when  all  the  conditions  required  for 
the  effectiveness  of  the  blockade  have  been  fulfilled  and  when  it 
has  been  properly  notified  in  conformity  with  the  foregoing  rules; 
they  shall  absolutely  refrain  from  sailing  for  the  blockaded  port 
or  coast  or  from  leaving  it  by  forcing  the  line  of  investment,  under 
pain  of  liability,  in  case  of  violation,  to  the  penalties  provided  by 
international  law,  and  mentioned  in  rules  1848-1849. 

1843.  The  law  of  blockade  shall  be  deemed  violated  only  when 
a  ship,  to  which  the  special  notice  shall  have  been  communicated 
as  prescribed  in  rule  1838,  shall  attempt  to  reach  the  blockaded 
coast  or  port  or  to  leave  it.     (Compare  rule  1846.) 

RIGHTS   OF   NEUTRALS   IN   CASE   OF   BLOCKADE 

1844.  A  neutral  ship,  notwithstanding  the  diplomatic  noti- 
fication of  the  blockade  by  a  belligerent  and  announced  by  its 
Government,  shall  be  entitled  to  sail  for  a  blockaded  port,  and  may 
not  be  considered  guilty  of  violating  the  blockade  unless,  having 
received  the  special  notification  referred  to  in  rule  1838,  it  has 
attempted  to  force  or  has  forced  the  line  of  real  and  effective  block- 
ade.   (Compare  rule  1846.) 

[This  is  the  continental,  but  not  the  Anglo-American  rule. — Transl.l 

1845.  The  official  communication  conveyed  to  the  consuls  of 
neutral  states  residing  in  the  blockaded  countries  shall  not  be 
equivalent  to  the  special  notice  that  must  be  given  to  merchant 
vessels  of  these  states.  If  one  of  these  vessels,  finding  itself  in  a 
blockaded  port,  should  attempt  to  leave  it  after  the  blockade  has 


672  INTERNATIONAL    LAW    CODIFIED 

been  established  in  a  real  and  effective  manner,  it  shall  not  be 
deemed  guilty  of  violating  the  blockade  unless  it  had  been  reached 
by  the  special  notice  contemplated  in  rule  1838. 

Such  ship,  as  well  as  any  vessel  which  may  attempt  to  enter 
the  blockaded  port  after  special  notice,  would  be  subject  to  the 
laws  of  war  governing  blockade  and  to  the  penalties  provided  by 
those  laws. 

1846.  The  laws  of  war  governing  blockade  shall  not  apply  to 
neutral  vessels  leaving  blockaded  ports  in  ballast,  or  which,  hav- 
ing taken  a  cargo  on  board  before  the  commencement  of  the  block- 
ade, shall  cross  the  line  of  blockade  within  the  time  fixed  by  the 
commander  for  leaving,  or  within  the  time  stipulated  in  treaties, 
observing  to  that  end  the  provisions  of  rules  1840  and  1841. 

APPLICATION    OF   THE   KULES   OF    BLOCKADE   TO    ENEMY   MERCHANT 

VESSELS 

1847.  The  foregoing  rules  shall  be  applicable  likewise  to  enemy 
merchant  vessels  regarded  as  violating  the  blockade,  provided 
enemy  private  property  had  been  declared  inviolable  during  mari- 
time war,  thus  abrogating  the  exceptional  rule  now  in  force,  which 
permits  their  capture  as  ships  of  the  enemy. 

PENALTIES 

1848.  A  belligerent  has  the  right  to  seize  any  merchant  vessel, 
whoever  its  owner,  which,  having  been  specially  notified  not  to 
cross  the  blockading  line — as  provided  by  rule  1838 — has  attempted 
to  violate  or  has  violated  the  blockade  and  was  caught  in  the  act. 

1849.  He  has  the  right  likewise  to  confiscate  the  ship  and  the 
cargo,  whoever  the  owner  and  whatever  its  nature  may  be,  when  a 
competent  court  has  decided  that  the  ship  seized  was  actually 
guilty  of  violating  the  blockade  or  of  attempting  its  violation  at 
the  time  it  was  caught  in  the  act  and  captured. 


TITLE  XX ' 

CONTRABAND  OF  WAR 

1860.  Contraband  of  war  is  the  transport  by  sea,  addressed  to 
or  destined  for  the  enemy,  of  any  kind  of  arms,  machines,- engines, 
or  any  other  articles  which  may  be  considered  as  designed  for  use 
in  land  or  naval  war  and  which,  as  such,  must  be  regarded  as  con- 
traband of  war  under  the  customary  law  of  nations  or  conven- 
tional law. 

1851.  The  belligerent  has  the  right  to  forbid  the  transport, 
addressed  to  or  destined  for  the  enemy,  of  goods  likely  to  be  of 
service  in  war;  to  consider  the  transport  of  these  goods  by  neutral 
ships  as  an  act  of  assistance  for  the  purposes  of  war  quite  irrecon- 
cilable with  the  legal  status  of  neutrality  and  with  the  duties  aris- 
ing therefrom,  and  to  consider  any  ship  engaged  in  such  traffic 
as  at  once  deprived  of  the  right  to  be  deemed  a  neutral,  by  subject- 
ing it  to  the  penalties  applicable  under  the  laws  and  customs  of 
war  to  those  carrying  contraband  of  war., 

ARTICLES  CONSIDERED  CONTRABAND  ACCORDING  TO  THE  '' COMMON" 

LAW   OF   NATIONS 

1852.  Articles  of  any  kind  manufactured,  prepared  and  designed 
for  use  in  war  shall  be  deemed,  according  to  customary  law, 
contraband  goods.    Such  are: 

(a)  All  species  of  arms  designed  for  attack  and  defense,  whatever 
their  nature; 

(6)  Munitions  of  war  and  likewise  all  explosive  or  fulmiiiatint^ 
material  which  may  take  the  place  of  powder,  or  which,  in  the 
progress  of  science,  is  likely  to  be  made  use  of  as  a  means  of  de- 
struction in  time  of  war; 

*  We  reprint  horo,  with  a  few  changes,  the  rules  relating  to  contrabund 
of  war  as  formulated  in  the  i)rc(;ecling  editions  of  this  book  and  as  devt'Ioprd 
in  f)ur  other  works.     See:  Fiore,  Dirilln  intcrnazionale  pubhliro,  no.  117. 

673 


674  INTERNATIONAL  LAW   CODIFIED 

(c)  Articles  of  equipment  and  armament  for  the  army  and  navy; 

(d)  War-ships  and  all  kinds  of  boats  likely  to  be  used  in  war  and 
the  constituent  parts  of  such  ships  and  boats,  provided  that  they 
are,  in  their  present  state,  manufactured,  prepared,  and  designed 
so  as  to  be  added  to  the  principal  structure,  of  which  they  are 
accessories; 

(e)  All  other  articles  which,  in  the  progress  of  militaiy  science, 
are  manufactured,  prepared,  and  designed  for  immediate  service 
in  the  actual  uses  of  land  or  naval  war; 

(/)  Machines  and  instruments  for  manufacturing  the  things 
above  mentioned. 

Although  considerable  differences  exist  as  to  the  determination  of  the  things 
which  must  be  considered  contraband  of  war,  whose  transport  to  the  enemy 
must  be  deemed  prohibited,  it  is  universally  agreed  that  the  artiicles  above 
enumerated,  which  are  to  be  considered  as  manufactured  and  prepared  for 
use  in  war,  must  be  regarded  as  contraband  of  war.  It  must,  therefore,  be 
considered  that  they  surely  constitute  contraband  according  to  the  customary 
law  of  nations. 

Italy,  in  article  216  of  the  Merchant  Marine  Code,  defines  contraband  of 
war  as  follows:  "The  following  are  declared  to  be  contraband  of  war:  Cannon, 
rifles,  carbines,  revolvers,  pistols,  sabers  and  other  firearms  and  portable  arms 
of  all  kinds,  and  in  general  everything  that  may,  without  treatment,  serve  for 
immediate  naval  or  land  armament." 

A  BELLIGERENT  CANNOT  EXTEND  AS  HE  PLEASES  THE  CONCEPTION 

OF   CONTRABAND   OF   WAR 

1853.  A  belligerent  is  not  allowed,  through  orders,  decrees  and 
proclamations  promulgated  at  the  outbreak  of  war,  to  declare 
that  the  transport  of  certain  articles  not  forbidden  by  the  custom- 
ary law  of  nations  shall  be  considered  as  contraband  of  war. 

If,  however,  in  consequence  of  such  an  order  or  decree,  the  gov- 
ernment of  a  neutral  state  has  ordered  its  citizens  to  abstain  from 
transporting  to  a  belligerent  the  articles  indicated  in  a  decree 
promulgated  by  the  other  belligerent,  and  has  declared  that  the 
prohibited  transport  should  be  held  to  be  aid  or  assistance  for  the 
purposes  of  war,  the  prohibition  of  the  government  of  the  neutral 
state  should  be  deemed  binding  upon  its  citizens. 

This  could  also  be  established  by  treaties  in  conformity  with  rule 
1854,  infra. 

Rule  1853  tends  to  establish  that  the  true  conception  of  contraband  must  be 
considered  as  fixed  universally  according  to  the  principles  of  the  "common" 


contr.\band  op  war  675 

law  of  nations  and  that  belligerents  cannot  be  allowed  to  fix  it  themselves  by 
orders,  decrees  and  proclamations.  Some  writers,  however,  have  maintained 
that  the  belligerents  themselves  should  be  allowed  to  determine  which  articles 
may  be  carried  and  the  articles  whose  transport  ought  to  be  regarded  as  an 
act  of  assistance  and  subject  to  the  laws  of  war  applicable  to  the  carriage  of 
contraband.  We  find  this  doctrine  formulated  in  the  international  regulations 
of  maritime  prizes  adopted  bj'  the  Institute  of  International  Law  in  1882, 
§30,  which  reads:  "Belligerent  governments  shall  have  to  determine  in 
advance  in  each  particular  war  the  articles  which  they  will  consider  as  contra- 
band." Should  this  view  be  admitted,  the  result  would  be  that,  as  the  bel- 
ligerents could  determine  the  prohibition  to  suit  themselves,  they  could  ex- 
tend it  beyond  the  limits  w-hich  ought  always  to  be  considered  as  established 
according  to  the  nature  of  things  and  the  necessities  of  war;  and  thus  the  liberty 
of  trading  freely  in  time  of  war  as  in  time  of  peace,  recognized  generally  as 
belonging  to  neutrals  (provided  they  do  not  by  their  trade  lend  direct  aid  or 
assistance  to  the  belligerents)  would  be  in  fact  considerably  reduced,  since 
states  engaged  in  war  would  be  allowed  at  will  to  characterize  as  aid  and  as- 
sistance any  kind  of  trade  whatever  and  prohibit  it  as  such.  This  is  the  way 
the  great  maritime  powers  have  viewed  the  matter,  and  it  has  had  as  its  result 
the  arbitrary  restriction  of  the  trade  of  neutrals,  as  each  of  the  belligerents 
enumerated  to  suit  himself  the  articles  which  he  considered  contraband  of 
war  and  subjected  to  the  laws  in  suppression  of  contraband  any  vessel  carrying 
goods  the  trading  in  which  he  had  chosen  to  prohibit. 

We  admit  that  special  necessities  may,  under  certain  circumstances,  justify 
the  increase  beyond  normal  limits  of  the  nmnber  of  articles,  commerce  in 
which  should  be  prohibited.  Nevertheless,  as  no  belligerent  has  the  right  to 
assume  jurisdiction  over  all  states,  it  is  impossible  to  admit  that  he  may,  with 
imperative  authority,  declare  forbidden  to  all  neutral  states  all  traffic  in  ar- 
ticles indicated  by  him  as  contraband  of  war.  Otherwise,  we  would  be  led 
to  the  conclusion  that  this  belligerent  could  impose  upon  other  Powers  a  rule 
in  derogation  of  the  "common"  law  of  nations,  and  subject  them  in  case  of 
violation  to  all  the  penalties  provided  therefor  by  the  customary  law  of  nations. 
Therefore,  if,  owing  to  peculiar  circumstances,  it  should  become  absolutely 
necessary  to  prevent  commerce  in  certain  goods,  the  prohibition  proclaimed 
for  this  purpose  by  ordinances  or  decrees  published  at  the  outbreak  of  war 
could  only  become  effective  as  declarations  of  contraband  if  the  governments 
of  neutral  states  had  recognized  the  fact  that  the  commerce  thus  prohibited 
presented  the  character  of  aid  and  assistance  for  the  purposes  of  the  war  and 
had  forbidden  their  citizens  to  transport  these  particular  things,  by  declaring 
them  to  be  included  amongst  articles  of  contraband. 


CONVENTIONAL   CONTRABAND    OF   WAR 

1854.  The  category  of  articles  of  contraband  may  be  extended 
beyond  the  Umits  estabhshed  by  the  ''common"  law  of  nations 
by  virtue  of  the  express  stipulations  of  treaties  between  the  bel- 
ligerent and  other  states,  and  concluded,  either  previously  to  or  at 
the  outbreak  of  the  war.  In  such  case,  the  extension  of  the  con- 
traband lists  shall  be  valid  only  for  such  states  as  shall  be  bound 


676  INTERNATIONAL   LAW   CODIFIED 

by  treaty,  and  the  prohibition  to  transport  the  articles  stated 
shall  only  be  binding  upon  the  citizens  of  the  states  that  have 
signed  the  agreement. 

Admitting  that  the  category  of  the  articles  regarded  as  contraband  of  war 
may  be  extended  by  virtue  of  a  treaty,  we  infer  therefrom  that  the  conven- 
tional law  thus  fixed  can  only  apply  to  the  citizens  of  the  states  signatory  of 
such  treaty.  This,  far  from  disproving,  confirms  our  rule  above  set  forth,  by 
which  the  determination  of  contraband  of  war  in  conformity  with  international 
law  and  the  application  of  the  rules  and  penalties  relating  thereto  must  be 
considered  as  fixed  according  to  the  customary  law  of  nations  and  cannot 
depend  upon  the  pleasure  and  interests  of  the  belligerents  in  each  particular 
war.  The  "common"  law,  indeed,  can  not  l)e  modified  by  conventions  except 
as  regards  entities  which  may  validly  bind  themselves  by  treaty. 


RIGHT  OF  A  BELLIGERENT  TO  PROHIBIT  COMMERCE  IN  CERTAIN 

OBJECTS 

1855.  A  belhgerent  may,  owing  to  the  necessities  of  war,  pro- 
hibit the  carriage  of  certain  articles  to  his  enemy  and  prevent 
such  transport  by  force,  on  condition  of  indemnifying  private 
individuals  for  any  damage  arising  from  such  prohibition. 

In  order  to  make  clear  the  concept  involved  in  this  rule,  we  nmst  note  that 
it  is  impossible  to  deny  completely  the  right  of  a  belligerent  in  some  cases  to 
prevent  the  delivery  to  the  enemy  of  certain  fixed  articles  of  which  he  may 
liave  a  pressing  need  and  whose  privation  is  quite  certain  to  be  prejudicial  to 
him  and  to  weaken  his  power  to  continue  the  war.  Prohibition  and  recourse 
to  force  for  the  purpose  of  making  it  effective  would  be  justified  as  any  other 
operation  of  war,  since  no  one  can  deny  that  war  is  in  itself  a  case  of  jorce 
majeure  calculated  to  modify  the  authority  of  the  principles  of  the  "common" 
law  of  nations.  There  is,  in  time  of  war,  an  ensemble  of  rights  based  upon 
the  necessities  of  attack  and  defense,  and  amongst  them  is  the  right  of  forcible 
expropriation,  which  takes  the  form  of  requisitions,  forced  contributions,  etc. 
It  must  be  admitted,  therefore,  that  in  order  to  weaken  his  enemy  a  belligerent 
may  forbid  the  shipment  to  him  of  certain  articles,  so  as  to  diminish  his  power 
(jf  resistance  and  jjrevent  him  from  proceeding  with  the  war. 

What  he  cannot  do  is  to  transform  the  legal  nature  of  his  act,  by  assign- 
ing to  an  act  which  he  is  allowed  to  undertake  as  an  operation  of  war  the 
character  of  a  right  which  belongs  to  a  belligerent  by  customary  law,  namely, 
the  right  to  prevent  the  carriage  of  contraband  of  war.  He  is  not,  therefore, 
justified  in  considering  a  neutral  ship  as  deprived  of  the  privilege  of  neutrality 
by  the  mere  fact  that  it  is  transporting  to  the  enemy  articles  which  he  has 
himself  classed  as  contraband,  nor  in  subjecting  such  ship  to  the  penalties 
provided  for  by  international  law  against  those  who  violate  the  duties  of 
neutrality. 

And  so,  we  admit  the  right  of  prohibition  as  based  on  the  necessities  of  war, 
deeming  the  said  prohibition  to  be  a  case  of  force  majeure;  and  we  hold  also 
that  the  belligerent  is  bound  to  indemnify  private  individuals  whose  interests 


CONTRABAND    OF    WAR  677 

suffer  from  the  seizure  in  (ransilu  of  such  goods  transported  for  or  destined  to 
the  enemy.  Indeed,  such  transport  cannot  be  called  contraband  of  war;  it  is 
merely  liable  to  be  prohibited  in  the  belligerent's  exclusive  interest. 

DESTINATION   OF   THE   GOODS   AND   OF   THE    SHIP 

1856.  All  articles  which,  in  conformity  with  the  foregoing  rules, 
may  be  called  contraband  of  war  are  sul^ject  to  the  laws  of  war 
which  govern  their  transport,  when  it  appears  on  clear  and  con- 
clusive proofs  and  undoubted  circumstances  of  fact  that  they  are 
destined  to  one  or  the  other  belligerent,  even  through  a  false  des- 
tination or  intermediary  consignee. 

Contraband  goods  apparently  bound  for  a  neutral  port  may  in  reality  be 
bound  for  a  belligerent  state.  It  may  happen,  indeed,  that  in  reality  these 
goods  are  to  be  delivered  to  a  belligerent  in  the  course  of  the  voyage,  or  are 
to  be  landed  in  a  neutral  port  near  the  border  of  the  belligerent  state  in  order 
to  be  shipped,  with  less  risk,  to  the  territory  of  that  state  by  another  vessel, 
or  to  be  sent  there  by  land.  In  such  case,  it  is  held  that  the  enemy  destina- 
tion of  the  contraband  articles  arises  from  the  principle  of  the  continuity  of 
the  voyage.  This  j)rinciple  has  given  rise  to  long  discussions  and  to  various 
applications  for  justifying  the  repression,  V)y  penalties,  of  a  carriage  or  trans- 
port considered  as  contraband,  owing  to  fraud  as  to  the  real  destination. 

Compare  Fiore,  DirUlo  internazionale  pnbhlico,  v.  Ill,  §§  1649  et  seq.;  Fau- 
chille.  La  theorie  du  voyage  conlinu  en  maliere  de  contrebande  de  guerre,  in  Remie 
generale  de  droit  international,  1907,  pp.  298  e<  seq.;  Bonfils,  no.  1569;  Bluntschli 
rule  835;  Kleen,  De  la  contrebande  de  guerre,  I,  §  95;  Holland,  Pri^e  law  and 
Report  to  the  Institute  of  International  Law,  A nnuaire,  1898;  Oppenheim, 
§401. 

As  enemy  destination  constitutes  the  essential  characteristic  of  contraband 
and  as  the  fraudulent  act  is  only  an  apparent  act  devoid  of  legal  efficacy,  it 
must  be  conceded  that,  when  it  is  possible  to  establish  clearly  and  convincingly 
the  real  destination  of  articles  considered  as  contraband,  the  appearance  shall 
necessarily  yield  to  the  reality.  In  such  matters,  the  difficulty  consists  in 
verifying  the  presumption  of  fraud. 

1857.  Contraband  goods  on  board  a  neutral  ship  may  be  pre- 
sumed to  be  intended  for  the  enemy  whenever  such  ship  must,  in 
the  course  of  its  voyage,  call  at  an  enemy  port,  although  the  place 
of  destination  is  a  neutral  port,  or  when,  during  the  voyage,  it 
must  cross  waters  where  the  hostile  fleet  or  a  portion  of  such  fleet 
is  stationed. 

Likewise,  the  destination  of  the  goods  may  be  presumed  to  bo 
hostile  if  the  ship  follows  a  course  different  from  the  normal  route 
in  order  to  reach  the  port  of  destination  indicated  in  the  ship's 
papers,  or  when  the  ship's  papers  are  found  to  be  forged,  simulated 
or  altered. 


678  INTERNATIONAL   LAW    CODIFIED 

1858.  Any  neutral  ship  which  has  been  chartered  by  one  of  the 
beUigerents,  shall  be  deemed  to  have  been  chartered  for  a  military 
purpose  and  as  being  in  the  service  of  the  enemy  or  intended  for 
such  service,  and,  as  such,  shall  be  considered  contraband  of  war. 

FORBIDDEN   TRADE   ASSIMILATED   TO    CONTRABAND   OF   WAR 

1859.  Carriage  of  goods  by  sea  undertaken  in  time  of  war  for  the 
account  of  or  destined  to  the  enemy  and  having  the  character  of 
military  assistance  shall  be  assimilated  to  contraband  of  war. 

Transporting  soldiers,  dispatches,  fuel,  or  agents  of  the  belliger- 
ents under  the  conditions  specified  in  the  following  rules  shall  be 
regarded  as  such  contraband. 

TRANSPORT   OF   SOLDIERS   AND   OFFICERS 

1860.  The  fact  that  a  ship  has  voluntarily  agreed  to  transport 
the  officers  or  soldiers  of  a  belligerent,  or  persons  sent  by  him  for 
a  military  purpose  or  to  perform  a  public  sei'vice  connected  with 
military  operations  shall  be  considered  an  act  of  military  assist- 
ance and  assimilated  to  contraband  of  war. 

A  neutral  ship,  compelled  by  violence  or  force  to  transport  soldiers  or  sailors 
of  one  or  the  other  belligerent,  could  not  be  considered  as  guilty  of  a  violation 
of  neutrality.  For  such  transport  is  imputable  to  a  ship  only  when  she  has 
voluntarily  consented  to  undertake  it  for  the  belligerent.  The  transport  of 
an  officer  or  commander  even  when  accomplished  voluntarily  cannot  be 
charged  against  a  neutral  ship,  when  it  is  proved  that,  although  it  did  volun- 
tarily agree  to  undertake  it,  it  was  wholly  ignorant  of  the  status  of  the  person 
or  persons  carried  as  passengers.  Our  rule,  therefore,  tends  to  establish  that 
the  neutral  ship  cannot  be  treated  as  an  enemy  unless  it  has  voluntarily  and 
knowingly  accomplished  the  act  of  military  assistance. 

TRANSPORT   OF   DISPATCHES 

1861.  It  shall  be  an  act  assimilated  to  contraband  of  war  for  a 
ship  to  have  voluntarily  agreed  to  carry  the  dispatches  of  a  mili- 
tary authority,  whoever  the  addressees  may  be,  or  those  addressed 
to  a  military  authority,  whoever  the  senders  may  be,  as  well  as  for 
a  ship  to  transport  from  one  port  to  another  port  of  one  of  the 
belligerents  the  dispatches  of  a  public  official  addressed  to  another 
public  official  of  the  same  state,  and  also  knowingly  and  volun- 


CONTRABAND   OF    WAR  679 

tarily  to  undertake  to  carry  correspondence  for  the  purposes  of 
war.     (Compare  rule  1865.) 

A  condition  which  seems  to  us  indispensable  in  considering  as  an  act  of 
hostility  the  carriage  of  dispatches,  is  that  in  so  doing  the  vessel  knowingl}' 
wished  to  assist  the  belligerent,  and  that  it  thus  became  an  enemy  just  as 
would  any  one  who  attempts  to  help  the  belligerent  in  any  way.  When  the 
ship  carries  the  dispatches  of  a  military  authority  it  cannot  be  ignorant  of 
the  fact  that  bj'  so  doing  it  is  aiding  one  of  the  states  engaged  in  war  and  thus 
commits  an  act  of  hostility.  Its  hostile  intention  cannot  be  doubted  when 
it  voluntarily  plays  the  part  of  a  courier  by  carrying  the  dispatches  of  a  public 
official  of  the  belligerent  state  addressed  to  another  official  of  the  same  country, 
wherever  it  may  be  delivered.  As  regards  any  other  kind  of  correspondence, 
the  knowledge  of  its  purpose  seems  to  us  an  indispensable  condition;  accord- 
ingly, in  the  second  part  of  our  rule  we  have  used  the  words  knoioingly  and 
voluntarily,  because  it  is  only  when  the  neutral  ship  spontaneously  does  some- 
thing advantageous  to  the  belligerent  that  it  becomes  an  enemy.  If  it  had 
carried  the  dispatch  in  good  faith  without  knowing  its  origin,  and  could  prove 
it,  its  action  could  not  be  regarded  as  an  act  of  hostility. 


TRANSPORT   OF   COAL 

1862.  The  transport  of  coal  for  a  belligerent  shall  be  assimilated 
to  contraband  of  war,  if  it  is  intended  for  the  military  authorities 
located  in  a  portion  of  the  territory  of  the  belligerent  state  or  for 
a  ship  belonging  to  the  fleet,  wherever  it  is  to  be  delivered. 

CARRIAGE   OF   DIPLOMATIC   AGENTS 

1863.  The  transport  of  the  diplomatic  agents  of  a  belligerent 
state  shall  not  be  assimilated  to  contraband  of  war. 

Nevertheless,  in  time  of  civil  war,  a  ship  knowingly  and  volun- 
tarily transporting  agents  of  a  revolutionary  party  which  is  waging 
war,  may  be  deemed  guilty  of  an  unlawful  transport  assimilated 
to  contraband  of  war. 

It  cannot  be  held  in  principle  that  transporting  the  agents  or  commissioners 
of  one  of  the  belligerents  may  be  assimilated  to  an  act  of  contraband  carriage. 
Yet  such  action,  under  certain  circumstances,  may  be  regarded  as  a  direct 
intention  to  aid  and  assist  in  the  purposes  of  the  war.  If  the  transport  does 
not  bear  the  true  character  of  an  act  of  hostility  and  assistance,  the  fact  of 
transporting  cannot  he  characterized  as  a  hostile  act,  nor  can  it  be  assimilated 
to  contraband  of  war. 


C80  INTERNATIONAL   LAW    CODIFIED 

ARTICLES  WHICH  CANNOT  BE  CONSIDERED  AS  CONTRABAND  OF  WAR 

1864.  Arms  and  ammunition  on  board  a  neutral  ship,  which 
must  be  considered  as  intended  for  its  use  and  defense  shall  not  be 
included  among  the  articles  of  contraband  of  war. 

1865.  The  carriage  of  ordinary  correspondence  contained  in  mail 
bags  destined  for  a  hostile  port  and  emanating  from  a  neutral 
port,  and  the  carriage  of  dispatches  sent  to  their  government  by 
the  ministers  or  consuls  of  the  belligerent  state  accredited  to  or 
residing  in  a  neutral  port,  shall  not  be  assimilated  to  contraband 
of  war. 

As  diplomatic  relations  between  the  belligerent  states  and  neutral  states 
are  not  interrupted  in  time  of  war,  it  must  necessarily  be  admitted  that  the 
correspondence  of  the  ministers  and  consuls  residing  in  the  territory  of  neutral 
states  with  their  own  government  may  not  be  interrupted  on  account  of  war. 

1866.  The  voluntary  transport  by  a  neutral  ship  of  citizens  of 
one  of  the  belligerents  residing  abroad,  who  at  the  outbreak  of  the 
war  have  set  sail  for  their  home  country,  even  if  they  may  be  sus- 
pected of  returning  for  the  purpose  of  taking  part  in  the  war,  shall 
not  be  regarded  as  contrabantl  of  war. 

Persons  who  emigrate  even  for  the  purpose  of  enlisting  as  volunteers  in  the 
armies  of  their  country  certainly  cannot  be  considered  as  soldiers,  and  conse- 
quently the  fact  of  transporting  them  cannot  be  assimilated  to  the  transport 
of  soldiers  forbidden  by  rule  18(30. 

PENALTIES  APPLICABLE  TO  THE  TRANSPORT  OF  CONTRABAND  OF  WAR 

1867.  The  transport  of  contraband  of  war,  whether  undertaken 
by  an  enemy  ship  or  by  a  neutral  ship,  shall  entail  the  application 
of  the  penalties  provided  under  "common"  or  conventional  law  for 
preventing  and  punishing  such  vmlawful  act  of  assistance  in  time 
of  war. 

Penalties,  however,  shall  only  apply  to  the  acts  which  may  be 
considered  contraband  of  war  according  to  the  rules  hereinbefore 
laid   down. 

1868.  The  penalties  designed  to  prevent  the  transport  of  con- 
traband of  war  cannot  have  the  character  and  nature  of  a  penalty 
intended  to  punish  a  criminal  act  but  must  have  the  character  of 
measures  calculated  to  insure  the  right  of  legitimate  defense  of  a 
belligerent  against  his  enemy.     It  is  required,  therefore,  that  the 


CONTRABAND    OF   WAR  681 

ship  be  caught  in  the  act,  and  when  the  fact  is  ascertained  (i.  e., 
the  carriage  of  contraband  of  war  destined  to  a  belligerent),  it  is 
useless  to  inquire  into  the  intention. 

Hence  penalties  cannot  be  exaggerated  and  increased  to  make 
the  punishment  more  effective,  but  must  be  restricted  and  limited 
to  whatever  is  necessary  to  safeguarding  the  right  of  defense. 

1869.  The  governments  of  civilized  states  must  in  common 
agreement  adopt  international  regulations  concerning  the  penalties 
likely  to  prevent  unlawful  acts  of  military  assistance  in  time  of 
war,  so  as  to  avoid  all  arbitrary  acts  in  so  delicate  a  matter. 

So  long  as  such  agreement  does  not  exist,  penalties  can  only  be 
justified  when  conforming  to  the  general  principles  of  international 
law. 

PENALTIES   ACCORDING   TO   THE   GENERAL   PRINCIPLES   OF 
INTERNATIONAL    LAW 

1870.  A  belligerent  has  the  right  to  confiscate  all  goods  on  board 
neutral  ships,  when  they  constitute  contraband  of  war  according 
to  international  law. 

1871.  A  belligerent  may  stop  and  detain  a  ship  which  is  trans- 
porting contraband  goods,  in  so  far  as  this  action  may  be  necessary 
in  order  to  confiscate  the  goods  and  transport  them  to  a  safe  place. 

1872.  The  right  of  prize  over  a  neutral  ship  carrying  contra- 
band may  be  accorded  to  a  belligerent  only  when  such  ship,  by 
reason  of  the  military  assistance  it  is  giving  to  the  other  belliger- 
ent, can  be  likened  to  an  enemy  ship. 

It  shall  be  necessary,  therefore,  that  the  facts  and  circumstances 
be  such  as  to  cause  the  ship  to  be  considered  guilty  of  active  par- 
ticipation in  the  hostilities. 

1873.  Active  participation  in  the  hostilities  may  be  regarded  as 
established  in  the  following  cases: 

(a)  When  the  ship  has  voluntarily  and  knowingly  undertaken 
to  transport  soldiers  for  a  belligerent; 

(h)  When  the  ship  has  been  knowingly  and  voluntarily  chartered 
for  the  transport  of  dispatches  to  the  enemy  under  such  circum- 
stances as  to  cause  such  transport  to  be  assimilated  to  an  act  of 
contraband  of  war, 

(c)  When  it  has  been  chartered  for  the  transport  of  provisions 
and  stores  intended  for  the  navy  or  the  army; 


682  INTERNATIONAL   LAW    CODIFIED 

(d)  When  it  is  to  be  placed  at  the  belligerent's  disposal; 

(e)  When   the   contraband   goods   transported   constitute   the 
major  part  of  the  cargo  (three-fourths  or  at  least  two-thirds); 

(/)  When,   suspected   of  transporting   contraband,   it  has  at- 
tempted to  resist  search  by  the  use  of  force. 

The  rules  we  propose  are  based  upon  the  idea  that  the  exceptional  law  in 
force  in  time  of  war  may  give  the  belligerent  the  power  to  prevent,  on  the 
part  of  neutrals,  the  performance  of  any  act  likely  to  conflict  with  his  interests 
of  legitimate  defense.  As,  however,  he  cannot  assume  the  attributes  of  a 
legislator  and  the  power  of  compelling  everybody  to  respect  his  decrees,  he 
can  not  apply,  as  a  punishment,  the  most  severe  penalties  for  insuring  by  terror 
the  protection  of  his  interests.  To  accord  to  the  belligerent  a  right  of  jurisdic- 
tion over  the  high  seas,  or  to  allow  him  to  characterize  as  crimes  actions  which 
might  be  detrimental  to  his  inlerests  or  to  grant  him  the  right  to  subject  to 
the  penalties  provided  by  him  those  who  infringe  the  prohibitions  declared 
by  him  for  the  purpose  of  protecting  his  interests,  would  be  out  of  the  ques- 
tion. It  is  impossible,  indeed,  to  admit  that  in  order  to  render  the  punish- 
ment more  effective,  the  belligerent  may  make  the  penalty  more  severe  by 
confiscating  the  ship  transporting  the  articles  designated  by  him  as  contraband 
on  the  pretext  of  intimidating  those  who  might  attempt  to  injure  his  interests. 

The  most  exact  view  of  this  matter  and  the  one  most  conformable  to  justice 
is  that  the  right  of  the  belligerent  consists  in  providing  effectively  for  his 
defense  and  in  preventing  his  adversary  from  resorting  to  the  assistance  of 
neutrals  to  increase  his  military  power.  It  follows  therefrom  that  he  may 
seize  articles  considered  as  contraband  of  war,  but  not  the  ships  transporting 
them,  because  the  simple  act  of  transportation  can  be  regarded  as  a  commer- 
cial transaction. 

If  all  states  should  agree  to  assign  to  contraband  carriage  the  character  of 
an  offense  against  international  law  and  to  decide  that  the  ship  which  may 
have  committed  it  would  be  liable  to  confiscation,  the  capture  of  the  ship 
could  be  justified  by  reason  of  the  violation  of  the  "common"  law  proclaimed 
by  the  states;  but,  under  present  conditions,  the  belligerent  can  only  exercise 
the  exceptional  rights  which  he  has  in  time  of  war,  considering  the  object 
to  be  attained  by  means  of  the  hostilities.  According  to  these  rights,  con- 
fiscating the  ship  which  transports  contraband  is  not  justifiable. 

The  case  is  different  when  the  ship,  by  its  acts,  takes  an  active  part  in  the 
hostilities,  which  would  occur  in  the  cases  contemplated  by  us.  When  it 
performs  an  act  of  military  assistance  serious  enough  to  be  regarded  as  hostile, 
it  is  natural  to  liken  it  to  a  merchant  ship  aligned  with  warships  intended  for 
military  operations. 

At  any  rate,  it  is  reasonable  to  acknowledge  simply  that  a  ship  which  under- 
takes an  unlawful  transportation  at  its  own  risk  and  peril  should  suffer  all 
the  consequences  thereof.  If,  consequently,  a  belligerent  interrupts  its  voj'- 
age  and  compels  it  to  stop;  if,  in  order  to  bring  to  a  safe  place  articles  of  con- 
traband, he  compels  it  to  take  them  to  one  of  his  ports,  it  cannot  complain, 
because  it  is  suffering  the  consequences  of  the  unlawful  act  and  of  the  risks  it 
has  voluntarily  assumed.  But  when  the  belligerent  has  provided  for  the  pro- 
tection of  his  own  rights,  he  cannot  require  anything  else  of  the  ship,  nor 
treat  it  as  an  enemy  ship. 

See,  for  further  developments  of  our  doctrine  the  article  published  by  us  in 


CONTRABAND    OF    WAR  683 

the  Pandecles  frangaises  under  the  word  Contrebande  de  guerre  and  the  study 
on  the  same  subject  translated  into  Spanish  and  published  at  Madrid,  Revista 
de  legislacion,  1896. 

[With  reference  to  subdivision  (e)  of  rule  1873,  it  may  be  said  that  the 
rule  of  the  Declaration  of  London,  article  40,  and  that  adopted  by  the  prin- 
cipal maritime  countries  is  that  "a  vessel  carrying  contraband  may  be  con- 
demned if  the  contraband,  reckoned  either  by  value,  weight,  volume,  or  freight, 
forms  more  than  half  the  cargo."  See,  The  Hakan,  L.  R.  [1916]  P.  266.— Transl.j 

1874.  In  no  case  shall  the  belUgerent  have  the  right  to  confis- 
cate the  lawful  cargo  which  happens  to  be  on  board  a  ship  trans- 
porting contraband. 

The  owners  of  the  lawful  goods  shall  not  be  entitled  to  require 
of  the  belligerents  any  indemnification  for  the  damage  incurred 
by  them  from  the  interruption  of  the  voyage  or  from  the  seizure 
of  the  ship;  they  msLV  only  bring  their  action  for  damages  against 
the  captain  or  the  shipowner. 

Even  though  the  lav/ful  and  unlawful  cargoes  should  belong  to  the  same 
owner,  it  could  not  be  permissible  to  pronounce  the  confiscation  of  the  lawful 
cargo.  Confiscation  thus  extended  would  have  the  character  of  a  veritable 
penalty,  which  is  inadmissible,  since,  as  we  have  already  shown,  confiscation 
in  case  of  contraband  of  war  must  be  restricted  within  the  bounds  created  by 
the  law  of  war.  It  may  merely  be  conceded  that  when  a  belligerent  has  the 
right  to  detain  a  ship  which  is  transporting  contraband  or  to  confiscate  it 
under  the  exceptional  circumstances  hereinbefore  indicated,  he  can  interrupt 
the  ship's  voj^age  and  that,  when  thus  exercising  a  legitimate  right,  he  can- 
not be  held  to  repair  the  damage  arising  from  the  exercise  of  such  right.  The 
captain  or  the  ship-owner  is  to  be  held  responsible  for  the  damages  arising 
from  the  interruption  of  the  voyage,  according  to  the  principles  of  "common" 
law  relating  to  the  transportation  contract,  which  principles  determine  the 
responsibility  of  these  two  persons  towards  the  owner  of  the  goods  for  damages 
which,  in  the  course  of  navigation,  have  been  incurred  by  him  through  the 
fault  of  the  person  managing  the  ship. 

1875.  It  is  the  duty  of  the  civilized  states  which  have  signed  the 
Declaration  of  Paris  of  185G,  or  which  have  adhered  thereto,  to 
eliminate  all  uncertainty  as  to  the  rules  of  maritime  law  in  time  of 
war,  by  fixing  in  common  agreement  the  articles  to  be  regarded  as 
contraband  of  war,  and  by  providing  penalties  for  the  purpose  of 
insuring  the  protection  of  the  belligerent's  right  to  prevent  unlaw- 
ful transportation  in  time  of  war. 

[This  was  apparently  written  before  the  Declaration  of  London  wa-s  adopted 
in  1909;  its  failure  of  ralification  and  its  arbitrary  disavowal  and  disregard 
by  .some  of  the  leading  l)f'lligcrents  in  the  European  War  have,  of  cour.se,  left 
it  without  effect  as  positive  law. — Transl.] 


>TITLE  XX 
OF  THE  RIGHT  OF  VISIT 

CONCEPT   AND   NATURE    OF   THE   RIGHT   OF   VISIT 

1876.  The  right  of  visit  consists  in  the  right  of  a  belUgerent, 
in  time  of  war,  to  compel  any  merchant  ship  encountered  within 
his  own  territorial  waters,  within  those  of  his  alUes,  or  on  the  high 
seas,  to  stop  in  order  to  verify  the  legal  status  and  the  nature  of 
the  ship's  cargo. 

This  right  may  be  exercised  by  the  commanders  of  ships  of  war 
of  the  belligerent,  as  well  as  by  those  of  duly  commissioned  pri- 
vateers, should  the  belligerent  admit  privateering. 

1877.  The  right  of  visit  must  be  considered  as  an  exceptional 
right  recognized  in  time  of  war  by  reason  of  military  necessity. 
It  must,  consequently,  be  exercised  with  the  just  restrictions  in- 
cidental to  the  nature  of  the  case  and  the  object  in  view,  and  shall 
not  be  deemed  legitimate  and  proper  when  the  person  exercising 
it  has  no  serious  reason  for  ascertaining  the  status  of  the  ship 
and  the  nature  of  its  cargo. 

This  rule  tends  to  establish  that,  although  in  principle  the  right  of  visit  on 
the  part  of  a  belligerent  cannot  be  limited,  yet  it  must  not  be  resorted  to 
except  in  the  places  and  circumstances  likely  to  justify  the  belligerent's  present 
interest  in  ascertaining  the  nationality  of  the  ship  met  on  the  high  seas  or  in 
his  territorial  waters,  or  the  nature  of  the  cargo  on  board. 

WHEN   MAY   THE   RIGHT   OF   VISIT   BE   EXERCISED 

1878.  Visit  may  be  undertaken  wherever  any  other  war  opera- 
tion is  allowed.  It  cannot  occur  in  neutral  territorial  waters 
without  violation  of  the  rights  of  neutral  states  (compare  rule 
1802),  but  may  be  exercised  in  the  territorial  waters  of  an  allied 
state  waging  war  on  the  side  of  the  belligerent. 

684 


OF  THE   RIGHT  OP  VISIT  685 

SHIPS   EXEMPT   FROM    VISIT 

1879.  A  belligerent  shall  not  have  the  right  to  subject  to  visit: 

(a)  Ships  of  war  of  a  neutral  state,  nor  those  which  belong  in 
any  capacity  to  the  navy  of  that  state; 

(b)  Mail  steamers,  carrying  mail  for  a  neutral  government, 
whose  flag  they  are  flying,  when  the  government  agent  on  board 
declares  in  writing  that  the  vessel  is  not  transporting  for  the  enemy 
either  soldiers,  dispatches,  contraband  of  war  or  articles  assimil- 
ated to  such  contraband.  ' 

CONVOYED   SHIPS 

1880.  Convoyed  merchant  ships  escorted  by  a  war  vessel  are 
exempt  from  visit,  provided  her  commander  gives  the  name  of 
every  ship  composing  the  convoy  placed  under  his  charge  and 
declares  that  there  is  no  contraband  of  war  nor  any  article  assimil- 
ated thereto  being  transported  for  the  account  of  or  bound  for  the 
enemy. 

The  declarati(jn  shall  be  made  by  the  commander  of  the  convoy 
on  his  word  of  honor  and  mention  of  it  shall  be  made  in  the  ship's 
log. 

Ships  adhering  to  the  convoy  cannot  claim  privileged  treatment 
unless  they  fulfill  the  conditions  required  in  order  to  be  lawfully 
regarded  as  belonging  to  the  convoy. 

1881.  Every  government  must  regulate  the  organization  of 
maritime  convoys  by  means  of  laws  calculated  to  safeguard  the 
rights  of  the  belligerents  and  the  necessities  of  war,  and  especially 
to  enjoin  the  commanders  of  escorting  vessels  not  to  receive  any 
ship  in  the  convoy  until  its  papers  have  been  carefully  examined 
and  it  has  been  ascertained  that  it  is  not  carrying  contraband 
of  war. 

Strict  service  regulations  in  that  matter  must  be  considered  as 
an  indispensable  condition  for  the  exemption  of  the  ships  of  the 
convoy  from  visit  and  search. 

The  Austrian  regulations  contain  numerous  detailed  provisions  concerning 
the  formation  and  direction  of  convoys,  as  do  also  the  Prussian  regulations. 
The  armed  neutrality  of  the  Northern  Powers  in  1800  fixed,  by  regulations, 
the  conditioiiH  retjuircd  for  exempting  convoys  from  visit.  Other  rules  have 
been  established  in  treaties,  v.  g.,  in  that  of  June  17,  ISOl,  between  Great 
Britain  and  Russia  (art.  IV).    Compare:  Perols,  op.  cil.,  §  56. 


686  INTERNATIONAL   LAW   CODIFIED 

VISIT   OF   CONVOYED    SHIPS 

1882.  Visiting  convoyed  ships  shall  be  deemed  legitimate: 

(a)  If  the  service  regulations  do  not  properly  permit  the  com- 
mander of  the  war  vessel  escorting  the  convoy  to  make  a  solemn 
declaration  as  to  the  nationahty  of  the  ships  and  the  destination  of 
the  cargo; 

(6)  If  the  commander  has  refused  to  make  the  required  declara- 
tion, or  has  made  it  in  an  incomplete  and  unsatisfactory  manner; 
or  if  circumstances  are  such  as  to  arouse  the  suspicion  that  he  is 
taking  undue  advantage  of  his  position;  or  if,  finally,  serious  rea- 
sons exist  for  suspecting  that  he  is  not  acting  in  good  faith. 

1883.  Should  a  convoyed  ship  be  properly  subjected  to  visit 
and  search,  the  actual  proceedings  connected  with  the  search 
might,  according  to  circumstances,  be  vested  in  the  commander 
of  the  escorting  ship  himself;  or  he  could  be  admitted  to  attend  it 
personally  or  to  delegate  an  officer  for  this  purpose. 

METHOD   OF   PROCEDURE    IN    CASE    OF   VISIT   AND    SEARCH 

1884.  Any  war-vessel  of  the  belligerent  state,  which  is  in  waters 
where  it  can  proceed  to  undertake  visit  and  search  and  wishes  to 
order  a  merchant  ship  to  stop  for  the  purpose  of  inquiring  into  its 
nationality,  must  hoist  the  national  flag  and  fire  a  gun. 

The  merchant  ship  must  answer  the  signal  by  flying  it^  own  flag 
and  by  stopping  at  once. 

1885.  The  commander  of  the  war-ship  must  in  turn  stop  at  a 
convenient  distance  to  be  able,  without  danger,  having  regard  to 
the  condition  of  the  sea  and  wind,  to  send  a  ship's  boat  with  a;i 
officer  and  two  or  three  men  in  order  to  proceed  with  the  visit. 

1886.  The  captain  of  the  merchant  ship  is  bound  to  present  the 
ship's  papers,  especially  the  certificate  of  nationality,  the  muster- 
roll  and  all  the  documents  likely  to  disclose  the  nature  and  desti- 
nation of  the  cargo. 

When  the  officer  who  has  examined  these  documents  finds  them 
to  be  in  order  and  has  no  reason  to  suspect  their  genuineness,  the 
visit  must  be  considered  as  ended.  After  mention  of  that  formaUty 
in  the  ship's  papers,  the  ship  is  permitted  to  resume  her  voyage 
undisturbed. 


I 


OF  THE  EIGHT  OF  VISIT  687 

SEARCH   AND    EXAMINATION 

1887.  If  the  ship's  papers  are  not  perfectly  regular  and  if  serious 
reasons  exist  for  questioning  the  genuineness  of  these  documents, 
search  and  examination  may  be  conducted  for  the  purpose  of  as- 
certaining whether  other  documents  or  suspicious  goods  are  on 
board. 

The  captain  cannot  object  to  this.  In  the  event  of  his  refusing, 
the  search  and  examination  may  be  undertaken  by  force.  Never- 
theless, the  officer  of  the  war-ship  must  always  act  with  the  great- 
est moderation  and  refrain  from  abusing  his  right;  he  must  limit 
the  search  to  the  matters  concerning  w^hich  there  exists  a  more  or 
less  well-founded  suspicion,  and  ordinarity  he  should  request  the 
captain  of  the  ship  to  open  all  closed  boxes  and  lockers. 

1888.  Serious  grounds  for  suspicion  shall  be  deemed  to  exist : 
(a)  If  the  ship  has  not  stopped  at  once  and  heaved  to  on  hearing 

the  gun  of  the  war  vessel; 

(6)  If  it  does  not  possess  all  the  papers  which  it  ought  to  have, 
even  if  they  are  alleged  to  have  fallen  overboard  or  have  been 
destroyed  during  the  voyage  for  any  reason  whatsoever; 

(c)  If  the  papers,  while  regular,  appear  to  have  been  altered  or 
counterfeited; 

(d)  If  the  attitude  of  the  commander  and  crew  is  such  as  to 
arouse  suspicion  of  irregularity; 

(e)  If  the  vessel  is  navigating  under  a  false  flag. 

1889.  In  the  cases  specified  and  in  anj^  other  where,  owing  to 
peculiar  circumstances,  serious  ground  for  suspicion  might  exist, 
the  search  could  be  extended,  by  compelling  the  captain  of  the 
ship  to  open  the  compartments,  closets,  and  lockers.  This  exam- 
ination could  not,  however,  go  so  far  as  to  justify  the  opening  or 
breaking  open  of  boxes,  casks,  and  closets,  on  the  pretext  of  look- 
ing for  papers  or  suspicious  goods. 

Such  acts  could  only  be  justified  in  case  the  captain  has  objected 
to  the  search  of  sealed  boxes  suspected  of  containing  the  ship's 
papers  or  contraband  of  war. 

SEIZURE    OF   THE    VISITED   SHIP 

1890.  Should  it  appear  from  the  visit  and  search  that  the  ship 
stopped  is  open  to  the  charge  of  violating  the  duties  of  neutrality. 


688  INTERNATIONAL   LAW   CODIFIED 

the  belligerent  would  have  the  right  to  seize  it,  in  accordance  with 
the  rules  of  procedure  set  forth  in  the  following  title. 

1891.  Seizure  may  likewise  be  made  if  the  ship  stopped  shall  be 
unable,  by  its  papers,  to  prove  _its  status  as  a  neutral  ship,  pro- 
vided, of  course,  the  belligerents  resort  to  the  exceptional  right  of 
seizure  of  private  enemy  property. 

Compare,  so  far  as  regards  the  right  of  seizure  and  the  procedure  relating 
thereto,  the  important  paper  of  M.  Bulmerincq,  Prises  maniimea.  Report  to 
the  Institute  of  International  Law,  published  in  Revue  de  droit  international  el 
de  legislation  comparee,  v.  X,  XI,  XII  and  XIII. 


TITLE  XXII 

OF  THE  RIGHT  OF  CAPTURE  IN  TIME  OF  NAVAL  WAR  ' 

SEIZURE    OF   SHIP   AND    CARGO 

1892.  The  seizure  of  ships  or  of  the  cargo  on  board  must  be  con- 
sidered as  an  exceptional  act,  justifiable  by  the  necessities  of  the  de- 
fense. It  consists  in  the  right  of  a  belligerent  to  take  possession  of 
an  enemy  merchant  ship  or  of  the  cargo  on  board,  when,  according 
to  the  laws  of  war,  he  is  permitted  to  appropriate  the  ship  or  cargo 
or  to  prevent  its  arriving  at  its  destination. 

WHEN   AND   BY   WHOM    SEIZURE   MAY   BE   MADE 

1893.  A  seizure  shall  be  deemed  lawful  only  when  made  by  a 
war-vessel  or  by  a  vessel  which,  in  conformity  with  the  laws  of 
war,  belongs  to  the  military  forces  of  the  belligerent. 

It  shall  be  considered  valid  only  when  the  legal  formalities  of 
procedure  laid  down  by  international  law,  or  arising  from  treaties, 
are  observed. 

1894.  A  seizure  is  presumed  to  be  made  by  a  belligerent  for  the 

'  We  reprint  the  rules  relating  to  the  right  of  capture  as  we  had  formulated 
them  in  the  preceding  editions  of  the  present  work,  under  nos.  1485-1544  of 
the  2d  edition  (1898)  and  of  the  3d  edition  (1900).  We  also  append  the  rules 
adopted  bj'  the  Second  Hague  Conference  of  1907  which  serve  to  give  more 
authority  to  our  rules,  since  they  are  substantially  similar  to  them. 

Our  conception  as  to  the  necessity  of  constituting  an  international  court  to 
have  cognizance  of  prize  cases  was  set  forth  as  early  as  the  time  we  published 
our  first  work  on  international  law,  under  the  title  of  Nuovo  Diritlo  iiUerna- 
zionale  (Milan,  1865). 

In  that  work,  we  held  that  the  sovereign  of  the  captor  could  not  assume 
jurisdiction  either  a.s  regards  the  captured  ship  or  its  crew,  and  therefore  that 
the  judgment  of  his  court  could  not  be  regarded  as  final  with  respect  to  the 
captured  ship;  that  the  belligerent  could  refer  his  agents  who  had  made  the 
seizure  to  the  decisions  of  his  courts,  in  order  to  determine  their  conduct  and 
decide  whether  the  respf)nsibility  should  be  assumed  (p.  553;  French  transla- 
tion of  Pradier-Foddrd,  v.  2,  p.  .52(i). 

We  subsequently  elaborated  our  ideas:  See  Pasquale  Fiore,  Traltato  di 
dinlto  inter naziotiale,  2d  cd.,  1884.  §  1903;  3d  ed.,  1891,  §  1770. 

689 


690  INTERNATIONAL   LAW   CODIFIED 

purpose  of  protecting  his  interests  and  of  meeting  the  requirements 
of  war.  It  shall  be  considered  as  made  under  his  responsibility 
and  as  giving  rise  to  damages,  if  it  is  subsequently  held  by  a  com- 
petent court  to  have  been  made  arbitrarily  without  cause  or  in 
violation  of  the  laws  and  customs  of  war. 

1895.  A  belligerent  may  seize  any  enemy  merchant  ship,  or  one 
suspected  of  being  an  enemy,  whenever  the  exceptional  right  of 
confiscating  the  private  property  of  the  enemy  in  time  of  war  is 
admitted. 

He  shall  have  the  right,  furthermore,  to  seize  a  neutral  merchant 
ship  or  goods  belonging  to  neutrals,  whenever  he  shall  have  good 
reason  to  consider  these  things  as  subject  to  confiscation  under  the 
law  of  war,  or  when  he  shall  be  able  to  avail  himself  of  the  right 
of  preventing  these  things  from  reaching  their  destination.  In 
all  these  cases,  he  shall  act  upon  his  own  responsibility. 

FORMALITIES  OF    SEIZURE  ACCORDING  TO   THE    " COMMON"   LAW  OF 

NATIONS 

1896.  The  commander  of  a  war-vessel  or  of  a  privateer,  properly 
commissioned,  who  wishes  to  undertake  a  seizure,  must  draw  up  a 
report  mentioning  the  legal  status  of  the  ship  and  cargo,  at  the 
time,  day,  and  date  the  seizure  took  place,  the  latitude  and  longi- 
tude of  the  place  where  the  ship  was  captured,  and  the  circum- 
stances which  brought  about  the  seizure. 

1897.  The  commander  must  draw  up  a  descriptive  inventory 
of  all  the  documents  and  papers  on  board,  noting  the  papers 
missing,  and  making  mention  of  the  whole  in  a  document  signed 
by  himself  and  by  the  captain  of  the  seized  ship.  All  these  docu- 
ments, together  with  all  writings  and  letters  found  on  board  shall 
be  placed  together  under  cover,  with  the  seals  of  the  commander 
and  of  the  captain  of  the  seized  ship  affixed  thereto. 

All  closets  and  lockers,  furthermore,  must  be  locked  and  on 
them  shall  be  placed  the  respective  seals  of  the  commander  and 
the  captain. 

The  inventory  of  the  cargo  and  the  list  of  the  members  of  the 
crew  and  of  all  on  board  must  likewise  be  made  out. 

1898.  A  record  shall  be  kept  of  each  of  these  proceedings,  to  be 
signed  by  the  commander  and  the  captain.     These  acts  must  be 


OF   THE    RIGHT    OF    CAPTURE    IN    NAVAL   WAR  691 

considered  as  properly  done  in  the  interest  both  of  the  captor  and 
of  the  prize. 

1899.  The  commander  of  a  belhgerent  ship  cannot  refuse  to 
enter  in  the  record  any  circumstance  of  fact  on  request  of  the 
captain  of  the  seized  ship,  or  to  comply  with  all  the  additional 
formalities  requested  by  the  captain  in  the  drawing  up  of  the  in- 
ventory and  the  affixing  of  the  seals,  even  if  he  deems  these  for- 
malities useless. 

PRESERVATION  OF  THINGS  CAPTURED 

1900.  The  captor  must,  if  possible,  preserve  things  captured  in 
their  present  condition,  and  neither  change  nor  destroy  them,  ex- 
cept in  case  of  grave  and  urgent  necessity  duly  established  and 
recognized. 

If,  however,  the  cargo  should  consist  of  things  likely  to  deterio- 
rate easily  or  already  damaged,  the  commander  of  the  war-ship 
could  take  any  measures  best  calculated  to  preserve  them,  but 
always  with  the  consent  of  the  captain  of  the  prize  and  in  his 
presence,  or  in  the  presence  of  the  national  consul  of  the  captain. 
Should  it  be  necessary  to  sell  part  of  the  cargo,  he  could  do  so,  re- 
questing, as  far  as  possible,  the  assistance  of  the  consul. 

WHEN   MAY   THE    CAPTURED    SHIP   BE    DESTROYED 

1901.  The  commander  of  the  war-ship  cannot  in  principle  con- 
sider himself  authorized  to  destroy  or  sink  the  captured  ship. 
He  may,  however,  do  so  on  his  own  r&sponsibility  (see  rule  1940) : 

1st.  When  the  condition  of  the  sea  or  of  the  captured  ship  will 
not  permit  of  its  remaining  afloat; 

2d.  When  the  ship,  owing  to  its  bad  condition  or  inferior  mo- 
tive power,  is  incapable  of  following  the  war-vessel,  and  may  not, 
without  serious  danger,  be  towed  by  the  latter; 

3d.  When,  on  enemy  war-ships  approaching,  it  becomes  im- 
possible for  the  commander  to  keep  the  captured  ship  without 
giving  up  his  freedom  of  movement  and  running  the  risk  of  its 
being  retaken  by  the  other  belligerent; 

4th.  When  it  is  not  possible  to  send  aboard  the  captured  ship 
a  prize  crew  sufficient  to  insure  its  custody  without  too  greatly 


692  INTERNATIONAL   LAW   CODIFIED 

reducing  the  crew  necessary  for  the  manning  and  security  of  the 
war-vessel; 

5th.  When  the  taking  of  the  captured  ship  into  one  of  the  ports 
of  the  belHgerent  may  interfere  with  the  miUtary  operations  in 
which  the  war-ship  is  engaged. 

1902.  In  all  the  cases  contemplated  in  the  foregoing  rule,  the 
commander  shall  draw  up  a  detailed  report  signed  by  two  officers 
of  the  ship,  in  which  shall  be  stated  the  circumstances  which  led 
to  the  destruction  of  the  captured  ship  and  the  grounds  on  which 
the  commander  may  have  ordered  it.  This  report  shall  be  re- 
corded in  the  ship's  log  and  forwarded  to  the  superior  naval  au- 
thorities in  a  copy  signed  by  the  commander. 

In  case  of  destruction  of  the  prize,  the  commander  is  not  only  responsible 
to  the  owner  of  the  ship  and  of  the  cargo  as  stated  under  rule  1940,  but  also 
to  his  own  government.  Furthermore,  he  may  be  liable  to  penalties  provided 
by  the  military  penal  code  which  punishes  in  time  of  war  acts  of  destruction 
not  justified  by  actual  necessities.     (Compare  rules  1484,  1530  et  seq.) 

1903.  The  commander  who  has  ordered  the  destruction  of  the 
captured  ship  must  always  transfer  to  his  vessel  and  place  in 
safety  all  persons  on  board,  all  the  papers  and  documents  under 
cover  and  seal  (see  rule  1897),  a  portion  of  the  cargo  which  brought 
about  the  seizure,  and,  as  far  as  possible,  the  articles  of  greatest 
value  which  may  be  considered  as  exempt  from  confiscation  and 
as  belonging  to  their  owners. 


PERSONS   ON   BOARD 

1904.  The  commander  of  the  war-ship  shall  have  the  right  to 
declare  as  prisoners  of  war  all  persons  belonging  to  the  fighting 
force  of  the  enemj'-,  as  well  as  the  members  of  the  crew,  provided 
the  ship  has  taken  an  active  part  in  the  military  operations  or  has 
by  armed  force  resisted  visit  and  search. 


A  CAPTURED  SHIP  TAKEN  INTO  A  PORT  OF  THE  CAPTOR  BELLIGERENT 

1905.  When  the  commander  of  the  war-ship  can  take  his  prize 
to  one  of  the  ports  of  his  country  or  of  an  aUied  state,  he  must  do 
so.  On  arriving  at  that  port,  he  must  turn  over  to  the  superior 
military  authorities  a  written  report  relating  to  the  seizure  and  all 


OF  THE    RIGHT   OF    CAPTURE    IN   NAVAL    WAK  G93 

documents  under  cover  and  seal,  and  the  military  authorities 
shall  keep  these  documents  in  order  to  forward  them,  as  received, 
to  the  judicial  authorities  competent  to  undertake  preliminary 
examinations  in  ordinary  cases,  observing  the  formalities  and 
principles  indicated  in  the  following  rule. 

1906.  The  maritime  authorities  of  the  port  into  which  the  prize 
may  have  been  taken  shall  be  obliged  to  record  in  a  report  all 
the  sealed  papers  turned  over  liy  the  war-vessel,  ascertaining  the 
exact  condition  of  the  seals.  They  shall,  besides,  receive  the  re- 
ports made  by  the  commander  of  the  cruiser  and  by  the  captain  of 
the  prize  and  the  declarations  of  the  members  of  the  crew.  They 
shall  take  an  inventory  of  the  packages  deposited,  draw  up  a  list 
of  the  persons  on  board,  and  require  that  an  account  of  the  voy- 
age be  made  without  delay,  and  they  shall  prescribe  the  measures 
necessary  in  order  to  determine  the  status  of  the  ship  and  of  its 
cargo  and  request  the  delivery  of  the  ship's  papers  on  board  the 
captor  vessel. 

All  these  acts  and  formalities  once  accomplished,  the  maritime 
authorities  shall,  without  delay  and  within  twenty-four  hours, 
deliver  the  documents  relating  to  the  seizure  and  status  of  the  ship 
to  the  judicial  authorities  competent  to  undertake  preliminary 
examinations  in  ordinary  cases. 

1907.  Should  there  be,  in  the  port  where  the  initial  proceedings 
are  to  take  place,  a  consul  of  the  neutral  state  to  which  the  prize 
belongs,  he  would  have  the  right  to  assist  the  naval  administrative 
officer  in  drawing  up  the  repoi't.  In  the  absence  of  a  consul,  the 
captain  of  the  prize  shall  have  the  right  to  take  part  in  such  draft 
or  have  himself  represented  therein  and  to  have  the  circumstances 
which  he  wishes  particularly  to  have  noted  mentioned  in  the  report. 

FUNCTION    OF   THE   .lUDICIAL   AUTHORITIES 

1908.  The  judicial  authorities  competent  to  make  the  prelimi- 
nary examination  in  ordinary  cases  shall  perform  all  the  subse- 
(luent  acts  which  they  may  deem  useful  in  oulightening  the  court 
having  jurisdiction  in  cases  of  maritime  capture  and  priz(^  They 
shall  gather  all  the  evidence  which  they  deem  capable  of  facilitating 
a  decision  in  the  case  and  shall  heed  the  demands  of  the  interested 
parties  which  request  certain  instructions  or  findings. 


094  INTERNATIONAL    LAW    CODIFIED 

1909.  The  said  judicial  authorities  shall  have  the  right  to  pre- 
scribe urgent  measures  for  the  preservation  of  the  captured  ship 
and  of  all  its  cargo.  They  shall  have  the  right  to  order  the  restitu- 
tion to  their  legitimate  owners  of  all  things  which  cannot  right- 
fully be  seized  as  prize  and  especially  those  l)elonging  to  the  mem- 
bers of  the  crew  or  to  the  passengers  who  were  on  board  the 
captured  vessel. 

1910.  On  completing  the  initial  examination,  the  judicial  au- 
thorities must  without  delay  turn  over  the  whole  record  to  the 
prize  court  instituted  by  their  own  government  for  passing  in 
first  instance  upon  the  validity  of  the  capture.  (Compare  rule 
1918.) 

PRIZE  TAKEN  TO  A  NEUTRAL  PORT 

1911.  A  war-ship  .shall  not  have  the  right  to  take  a  prize  into 
a  neutral  port  except  in  case  of  force  majeure,  or  when  it  shall  have 
been  compelled  to  take  refuge  therein,  with  its  prize,  owing  to  the 
enemy's  pursuit. 

1912.  The  maritime  authorities  of  the  neutral  port  and  the 
judicial  authorities  competent  preliminarily  to  examine  ordinary 
cases  must  perform  all  the  acts  indicated  in  the  foregoing  rules  and 
see  that  the  captured  ship  is  kept  in  custody  in  the  port  of  refuge, 
to  remain  there  until  such  time  as  the  International  Prize  Court 
shall  decide  upon  the  validity  of  the  capture  and  of  the  prize. 
After  judgment,  the  ship  may  be  placed  at  the  disposal  of  the 
owner,  if  the  prize  court  decides  that  the  capture  must  be  deemed 
unlawful,  or  declares  the  ship  and  its  cargo  or  a  part  thereof  to  be 
free  from  seizure. 

The  same  course  shall  be  followed,  when  the  government  of  the 
belhgerent  state  in  whose  name  the  capture  was  made  and  the 
interested  owners  of  the  captured  property  shall  have  concluded 
an  amicable  arrangement  concerning  the  ship  and  the  cargo. 

The  purpose  of  this  rule  is  to  protect  adequately  the  rights  of  sovereignty 
of  a  neutral  state  which  has  given  refuge  to  a  belligerent  ship  and  to  its 
prize.  It  is  inadmissible  that  a  belligerent  ship  pursued  by  the  enemy  may 
not  only  obtain  shelter  in  a  neutral  port,  but  require  from  the  sovereign  of 
that  state  the  privilege  of  leaving  the  port  with  its  prize,  when  the  danger  is 
over.  We  cannot  agree  with  certain  jurists  who  hold  that  the  neutral  govern- 
ment may  declare  the  prize  to  be  free,  because  that  would  constitute  the 
neutral  a  judge  in  the  matter  and  no  such  jurisdiction  can  be  admitted.  Nor 
do  we  believe  that  it  may  allow  the  cruiser  to  take  its  prize  away,  because  it 


OF   THE    RIGHT    OF    CAPTURE    IX    NAVAL    WAR  695 

would  be  furnishing  indirect,  assistance  by  giving  it  a  refuge  to  accomplish  a 
belligerent  operation,  namely,  that  of  placing  its  prize  in  safety. 

Our  rule,  as  formulated,  guarantees  all  interests  and  insures  the  protection 
of  the  neutral  ship  captured  until  such  time  as  the  International  Prize  Court 
(rule  1914)  shall  have  passed  upon  the  case,  or  until  such  time  as  the  parties 
shall  have  concluded  an  amicable  arrangement. 

THE    COMPETENT    TRIBUNAL    IN    CASE    OF    SEIZURE    AND    PRIZE 

1913.  The  lawfulness  and  regularity  of  the  seizure  of  merchant 
ships  in  time  of  war  and  of  the  confiscation  of  these  vessels  and 
their  cargo  must  be  referred  to  the  judgment  of  a  special  tribunal. 
It  shall  be  its  duty  to  pass  upon  these  matters  and  render  a  judg- 
ment by  which  it  shall  determine  the  validity  and  regularity  of  the 
seizure,  and  shall  give  to  the  belligerent,  in  whose  name  the  seizure 
was  made,  the  right  to  take  possession  of  the  things  seized  as  prize 
of  war,  or  shall  order  the  belligerent  to  restore  these  things  to  their 
owners. 

1914.  The  special  tribunal  competent  to  pass  upon  the  seizure 
of  merchant  ships  in  time  of  war  and  upon  the  validity  of  prizes 
shall  be  constituted  as  an  international  court  invested  with  an 
international  jurisdiction. 

CONSTITUTION   OF   THE    PRIZE   COURT 

1915.  The  International  Prize  Court  shall  be  constituted  when 
war  breaks  out  in  conformity  with  the  rules  to  be  established  in  a 
Congress  or  in  a  Conference.  It  should  be  composed  of  five  judges, 
three  of  them  to  be  designated  by  the  representatives  of  neutral 
states  and  chosen  from  among  the  judges  of  the  highest  tribunals 
or  admiralty  courts  of  three  neutral  states,  and  one  designated  by 
each  of  the  belligerents. 

1916.  In  the  absence  of  rules  established  in  advance  through  an 
international  agreement,  the  court  competent  to  decide  finally 
between  the  belligerents  and  the  interested  parties  in  the  matter 
of  prizes  shall  always  have  the  special  character  of  an  international 
court  and  the  following  rules  shall  always  be  observed  for  its  con- 
stitution : 

Each  belligerent  shall  name  one  judge;  the  three  others  shall  be 
appointed  by  neutral  states,  and  they  shall  be  selected  by  lot  from 
among  the  judges  of  the  supreme  or  admiralty  courts.  Each  of 
these  states  shall  have  the  right  to  designate  three  names  and  the 


696  INTERNATIONAL    LAW    CODIFIED 

three  candidates  who  obtain  the  greatest  number  of  votes  shall 
be  deemed  elected. 

The  interested  governments  shall  agree  upon  designating  one 
of  them  to  count  the  votes  and,  in  the  absence  of  an  agreement, 
such  duty  shall  be  considered  as  devolving  upon  the  government 
of  one  of  the  states  which,  according  to  the  "common"  law  of 
nations,  is  bound  to  absolute  neutrahty. 

The  belligerents  shall  have  the  right  to  be  represented  at  the 
balloting. 

1917.  Should  one  or  both  of  the  belligerent  states  fail  to  appoint 
a  judge,  the  rules  established  for  the  appointment  of  arbitrators 
whom  the  parties  decline  to  appoint  in  case  of  compulsory  arbitra- 
tion, as  provided  for  in  rule  1308.  would  be  followed  for  his  appoint- 
ment. 

SPECIAL   PRIZE    COURT   CONSTITUTED    BY    THE   BELLIGERENT 

1918.  Every  belligerent  state  shall  have  the  right  to  create  a 
special  court  for  the  prizes  taken  by  his  war-vessels,  their  function 
being  to  decide  upon  the  regularity  of  the  seizures  and  the  validity 
of  the  prizes;  but  he  may  not  ascribe  to  such  court  an  international 
jurisdiction  in  the  matter  of  prize,  by  conferring  upon  it  the  power 
of  pronouncing  judgments  having  final  authority  with  respect  to 
the  validity  of  the  seizure  and  prize,  with  all  the  effects  arising 
from  the  recognition  of  the  prize  according  to  international  law. 

1919.  The  prize  court  instituted  by  each  state  according  to  its 
municipal  law  shall  be  considered  as  a  court  of  first  instance  with 
respect  to  the  property  seized  and  subjected  to  confiscation. 

Private  persons  condemned  by  the  court  shall  have  the  right 
either  to  accept  the  judgment  or  to  attack  it  by  appealing  to  the 
International  Prize  Court,  alone  deemed  competent  to  render 
final  judgment.    {Id.,  2d  and  3d  editions,  rules  1511-1512.) 

The  rules  here  formulated  have  as  their  object  the  removal  of  the  anomalj' 
of  the  sovereign  of  a  state  being  at  once  a  judge  and  a  party.  The  litigation 
as  to  the  legitimacy  of  the  prize  in  time  of  naval  war  always  exists  between 
the  government  in  whose  name  the  capture  was  made  and  the  owner  of  the 
property  captured,  and  as  this  litigation  can  only  be  settled  by  application 
of  the  rules  of  international  law  (which  determine  when  a  neutral  ship  or  an 
enemy  merchant  ship  may  be  seized  and  when  the  property  seized  must  be 
adjudged  to  the  belligerent),  it  is  inadmissil:)le  that  the  sovereign  who  is  a 
party  in  the  case  may  himself  be  the  judge.    To  admit  that  he  may  create  a 


OF  THE    RIGHT   OF    CAPTURE    IN    NAVAL    WAR  697 

court  with  final  jurisdiction  amounts  to  recognizing  in  him  the  faculty  of 
creatmg  an  international  jurisdiction  by  virtue  of  a  municipal  law, — a  possi- 
bility contrary  to  the  "common  "  law  of  nations.  The  sovereign  may  create  a 
special  prize  commission  for  the  sole  purpose  of  examining  the  validitj'  of  acts 
performed  in  his  name  and  interest  during  war  and  of  deciding  whether  the 
commanders  of  his  cruisers  have  complied  \vith  all  the  conditions  required  by 
the  laws  and  customs  of  war  for  undertaking  the  seizure  and  whether  or  not 
it  may  be  declared  a  valid  and  rightful  prize.  This  commission  should  confine 
its  work  to  enat)ling  the  government  to  control  the  exercise  of  the  right  of  prize 
delegated  by  the  sovereign  of  the  state  to  the  commanders  of  war  vessels  and 
to  duly  commissioned  privateers.  But  this  fact  cannot  be  considered  as 
finally  settling  the  question,  exclusively  one  of  international  law,  as  to  whether 
the  seizure  must  be  deemed  rightful  and  the  prize  valid  according  to  the  rules 
of  "common"  or  conventional  international  law.  The  belligerent  sovereign 
cannot  assume  any  right  to  settle  that  question,  because  he  is  a  party  in  the 
case,  either  as  plaintiff  or  as  defendant  as  against  the  owner  of  the  prize,  who 
attacks  the  seizure  as  irregular  and  the  prize  as  unlawful.  Accordingly,  final 
judgment  in  the  litigation  must  be  referred  to  an  international  court,  to  be 
constituted  in  conformity  with  the  rules  adopted  in  common  accord  by  states 
or  with  those  established  according  to  the  "common"  law  of  nations  for  the 
constitution  of  tribunals  of  arbitration.  We  concede  that  if  the  belligerent 
sovereign  has  instituted  a  prize  court,  this  jurisdiction  may  be  considered  as  a 
court  of  first  instance  and  that,  whatever  may  have  been  the  decision  of  that 
court,  if  the  interested  party  accepts  it,  it  may  become  final  by  the  voluntary 
submission  of  the  losing  party.  But  should  the  decision  not  be  accepted,  it 
would  be  wholly  impossible  to  concede  that  the  state,  in  violation  of  the  rules 
of  "common"  law,  has  the  right  not  only  to  create  such  a  court  but  to  declare 
it  competent  to  examine  and  decide,  according  to  its  own  laws,  questions  of 
international  law.     {Id.,  2d  and  3d  editions.) 


COMPETENCE    OF   THE    INTERN.\TIONAL    COURT 

1920.  The  international  court,  constituted  in  accordance  with 
the  foregoing  rules  to  decide  upon  questions  of  maritime  capture 
and  prizes,  shall  alone  be  deemed  competent  to  adjudge  finally 
the  cases  submitted  to  its  jurisdiction.  It  shall  have  the  same 
powers  as  an  appellate  court  in  case  each  of  the  belligerent  states 
had,  according  to  rule  1918,  instituted  a  special  court  in  conformity 
with  its  municipal  law. 

1921.  The  international  prize  court  shall  sit  in  the  territory  of  a 
neutral  state. 

PROCEDURE  BEFORE  THE  PRIZE  COURT 

1922.  With  respect  to  the  formalities  of  procedure  before  the 
prize  court,  the  rules  established  for  proceedings  before  tribunals 
of  arbitration  shall  be  observed. 


698  INTERNATIONAL    LAW    CODIFIED 

Id  conformity  with  these  rules,  all  the  preliminary  examinations 
designed  to  determine  the  alleged  facts  and  to  collect  all  the  evi- 
dence which  the  court  may  deem  necessary  in  order  to  decide  upon 
the  lawfulness  of  the  prize  shall  be  undertaken.  In  that  respect, 
both  the  captor  and  the  prize  shall  alike  be  bound  to  furnish  to  the 
court  all  the  evidence  which  it  may  request  in  order  to  judge  in- 
telligently. 

1923.  Subject  to  its  right  to  accept  or  reject  any  form  of  evidence, 
the  court  must  allow  both  parties  to  estabhsh  the  lawfulness  or 
unlawfulness  of  the  seizure  and  the  validity  or  invalidity  of  the 
confiscation. 

1924.  As  to  the  right  of  the  parties  to  be  represented  in  the  case 
and  to  submit  complaints  and  answers,  with  supporting  briefs  and 
arguments;  as  well  as  all  matters  of  delays  and  adjournments,  the 
preliminary  examination  of  the  case  and  organization  of  the  pro- 
ceedings, the  rules  of  procedure  applicable  before  tribunals  of  ar- 
bitration shall  be  observed. 

PROCEEDINGS  RELATIVE  TO  THE  LAWFULNESS  AND  REGULARITY  OF 

THE    CAPTURE 

1925.  It  is  the  office  of  the  prize  court  to  decide  whether  the 
seizure  of  the  merchant  ship  has  been  effected  lawfully  and  regu- 
larly. 

1926.  The  court  shall  have  to  determine  the  lawfulness  of  the 
seizure  according  to  the  rules  of  customary  or  conventional  inter- 
national law  in  time  of  war.  In  order  to  construe  and  apply  these 
rules,  the  court  should  take  into  account  the  state  documents  which 
fix  their  meaning  and  the  principles  of  conventional  law  established 
between  the  states  in  dispute.  It  may  also  have  reference  to  the 
decisions  of  prize  courts,  which  have  construed  and  applied  these 
rules  in  similar  cases,  and  to  the  opinion  of  writers. 

1927.  The  court  shall  pass  upon  the  admissibility  of  any  par- 
ticular evidence;  it  may  not,  however,  reject  the  documents  which 
were  not  on  board  at  the  time  of  the  seizure  and  which  may  exer- 
cise a  vital  influence  on  the  validity  of  the  prize. 

It  shall  evaluate  all  the  evidence  and  circumstances  of  fact 
according  to  its  own  convictions  and  prudent  judgment,  taking 
.into  account  the  grave  necessities  of  war,  which  compel  the  bellig- 


OF   THE    RIGHT   OF   CAPtURE    IN   NAVAL   WAR  699 

erent  to  look  carefully  after  his  own  defense  and  so  to  exercise  all 
his  rights  in  that  respect  as  to  protect  his  interests  most  zealously 
by  making  a  capture  whenever  he  considers  himself  legally  war- 
ranted in  so  doing. 

WHEN  THE   CAPTURE   OF  A   SHIP   MAY   BE    CONSIDERED    LEGITIMATE 

1928.  The  capture  of  a  ship  shall  be  deemed  legitimate: 

(a)  When,  the  confiscation  of  enemy  merchant  ships  being  ad- 
mitted (compare  rules  1716  et  seq.),  the  vessel  shall  not  be  able 
completely  to  establish  its  nationality; 

(6)  When  the  ship  has  no  papers  on  board,  or  when  those  it  has 
are  not  quite  regular;  or  when  there  are  reasons  for  considering 
them  suspicious,  e.  g.,  when  they  have  been  visibly  tampered 
with,  or  there  is  reason  to  regard  them  as  false  or  altered; 

(c)  When  the  ship,  summoned  to  stop  for  purposes  of  visit,  has 
attempted  to  resist  visit  and  search  by  force; 

(d)  When  the  visit  and  search  have  shown  in  fact  that  the  ship 
has  taken  an  active  part  in  the  hostilities  or  purposed  doing  so; 

A  neutral  ship  shall  always  be  considered  as  guilty  of  this  offense 
when  it  is  chartered  by  the  enemy  especially  to  transport  for  his 
account  soldiers,  provisions  or  stores  intended  for  troops; 

(e)  When  the  ship  carries  articles  of  contraband  of  war  and 
occupies  the  status  contemplated  in  rule  1872; 

(/)  When  it  is  employed  as  a  spy,  or  there  is  serious  reason  to 
suspect  it  of  espionage; 

(g)  When  it  has  by  force  undertaken  the  defense  of  a  hostile 
ship  which  was  attacked,  or  has  attempted  to  defend  it  by  taking 
part  in  the  fight; 

(h)  When  it  has  been  caught  in  the  act  of  violating  a  blockade, 
after  it  had  received  a  special  notification  of  the  blockade. 

WHEN   A    CAPTURE    IS   TO    BE    CONSIDERED    UNLAWFUL 

1929.  A  capture  shall  be  considered  absolutely  unlawful  and 
contrary  to  customary  international  law,  if  the  ship,  by  means  of 
its  papers,  was  able  to  prove  its  neutral  nationality  and  the  peace- 
ful purpose  of  its  sailing. 

The  documents  to  be  considered  as  decisive  in  that  respect  are: 


Too  INTERNATIONAL    LAW    CODIFIED 

(a)  The  certificate  of  nationality ; 

(6)  Documents  relating  to  the  ownership  of  the  ship,  when  such 
ownership  is  not  established  by  the  certificate  of  nationality; 

(c)  The  charter  party,  with  all  the  documents  relating  to  the 
nature  and  destination  of  the  cargo; 

(d)  The  muster-roll; 

(e)  The  ship's  papers  establishing  the  route  of  the  ship  according 
to  its  destination. 

These  documents  if  drawn  up  regularl}^  and  without  alteration 
must  be  regarded  as  sufficient  to  establish  'prima  facie  the  legal 
status  of  the  ship  and  the  destination  of  the  cargo.  Whenever 
the  genuineness  of  these  documents  is  not  open  to  suspicion,  they 
must  be  recognized  as  having  complete  probative  force;  and  any 
capture  made,  contrary  to  their  tenor,  on  the  ground  of  the  na- 
tionality of  the  ship  or  of  the  nature  and  destination  of  the  cargo 
must  be  considered  unlawful. 

CAPTURE  ON  ACCOUNT  OF  CARRIAGE  OF  CONTRABAND 

1930.  The  capture  of  contraband  of  war  may  be  considered 
rightful  only  when  it  consists  of  articles  comprised  among  those 
constituting  contraband  according  to  the  rules  of  international 
law  and  destined  for  the  other  belligerent.     (See  rules  1850  et  seq.) 

1931.  The  seizure  of  goods  constituting  contraband  of  war 
which  the  ship  is  taking  in  good  faith  to  a  neutral  port  may  be 
considered  lawful  whenever  the  belligerent  shall  be  able  to  furnish 
proof  that  the  said  goods  are  to  be  transhipped  in  that  neutral  port 
to  an  enemy  destination. 

But,  in  that  case,  it  will  not  be  permissible  to  seize  a  neutral 
ship  transporting  the  said  goods,  unless  it  shall  be  established 
prima  fade  that  the  ship  has  committed  a  hostile  act  by  under- 
taking voluntarily  and  knowingly  to  transport  prohibited  articles, 
and  has  thus  placed  itself  in  the  position  of  being  considered  as  a 
vessel  in  the  service  of  the  enemy.    (Compare  rule  1873.) 

1932.  The  capture  of  any  ship  knowingly  transporting  contra- 
band intended  for  the  enemy  shall  be  deemed  lawful  only  when  such 
contraband  shall,  in  quantity,  constitute  a  considerable  part  (three- 
fourths  at  least)  of  the  cargo. 

When  the  contraband  shall  be  less  in  quantity,  the  belligerent 


OF   THE    RIGHT   OF    CAPTURE    IN   NAVAL    WAR  701 

shall  have  the  right  to  detain  the  ship  when  unable  to  provide 
otherwise  for  the  safekeeping  of  the  seizable  goods. 
[See  rule  1873(e),  and  note  thereunder. — Transl.] 

1933.  The  capture  of  a  ship  transporting  contraband  of  war  shall 
not  be  considered  lawful  if  the  contraband  does  not  constitute  the 
main  part  of  the  cargo,  and  especially  if  the  captain  has  imme- 
diately declared  its  presence  on  board. 

In  such  case,  only  the  seizure  of  the  contraband  goods  is  lawful. 

CAPTURE    FOR    VIOLATION   OF    BLOCKADE 

1934.  Capture  for  violation  of  l)lockade  shall  be  deemed  lawful 
whenever  a  merchant  ship,  having  received  special  notification  of 
the  blockade  (see  rule  1838),  has  crossed  or  attempted  to  cross  the 
blockade  line. 

1935.  Capture  for  attempted  violation  of  the  blockade  may  also 
be  considered  lawful,  when  undertaken  against  a  ship  which  has,  in 
bad  faith,  tried  to  enter  or  leave  the  blockaded  port,  avoiding,  by 
means  of  some  fraudulent  stratagem,  the  receipt  of  the  special 
notification,  and  thus  succeeding  in  escaping  the  vigilance  of  the 
blockading  squadron, — provided  it  cannot  prove  that  it  did  not 
know  of  the  existence  of  the  blockade. 

1936.  The  capture  of  a  merchant  ship  shall  not  be  deemed 
lawful  when  based  solely  upon  the  fact  that  the  ship  was  chartered 
for  a  destination  which  was  a  blockaded  port  or  that  it  was  bound 
for  such  port.  The  ship  must  actually  be  in  a  position,  at  the  time 
of  seizure,  to  be  considered  guilty  of  violation  or  attempted  viola- 
tion of  blockade  conformably  to  the  foregoing  rules. 

JUDGMENT   AS   TO    CAPTURE 

1937.  After  having  completed  the  examination  of  the  case, 
ascertained  the  facts  and  circumstances,  and  studied  the  arguments 
of  the  parties,  the  court  must  determine  whether,  according  to  the 
rules  of  international  law,  the  capture  may  be  regarded  as  regular 
and  made  in  accordance  with  the  formalities  required  for  its 
legality,  reserving  its  decision  on  the  question  of  the  belligerent's 
right  to  confiscate  the  ship  or  the  cargo,  or  a  portion  thereof. 


702  INTERNATIONAL    LAW    CODIFIED 

1938.  When  the  ground  of  the  capture  is  not  considered  in  it- 
self sufficient  to  legitimate  it  according  to  the  principles  of  the 
"common"  law  of  nations,  the  court  must  order  the  belligerent 
to  restore  the  property  captured,  and,  taking  into  account  the 
circumstances  which  may  have  brought  it  about,  must  determine 
the  responsibility  of  the  belligerent,  and,  if  the  case  warrants  it, 
condemn  him  in  damages. 

If  the  capture  has  been  made  in  violation  of  the  rules  of  inter- 
national law,  or  has  been  proved  groundless,  the  court  must  con- 
demn the  captor  not  only  to  restore  the  ship  and  its  cargo  to  the 
owners,  but  to  indemnify  the  latter  for  all  the  damages  they  may 
have  sustained,  and  to  pay  the  costs  of  the  proceedings  and  judg- 
ment. 

1939.  The  captor  shall  likewise  be  condemned  to  pay  damages, 
as  in  the  case  contemplated  in  the  second  part  of  the  preceding  rule, 
when  the  capture,  made  for  a  reason  apparently  legitimate,  shall 
have  been  subsequently  maintained  by  reason  of  some  irregularity 
in  procedure  chargeable  to  the  commander  of  the  belligerent  ship, 
or  by  the  non-observance  of  the  rules  established  with  respect  to 
the  petition  for  the  validation  or  adjudication  of  the  capture,  or 
when  an  unjustified  delay  has  occurred,  chargeable  to  the  gov- 
ernment, in  the  petition  for  the  validation  of  the  capture.  (See 
rules  1905  et  seq.) 

The  three  preceding  rules  aim  at  distinguishing  between  the  proceedings 
relating  to  the  regularity  of  the  seizure  and  the  proceedings  for  the  confiscation 
and  condemnation  of  the  property  captured.  The  seizure  is  always  made  by 
the  commanders  of  warships  and  cruisers,  authorized  to  that  effect,  under 
their  own  responsibility  and  consequently  under  the  responsibility  of  the 
government  in  whose  name  the  operations  of  war  are  being  undertaken.  It 
may  happen  that,  while  the  capture  was  lawfully  and  regularly  made,  the 
belligerent  had  no  right  to  confiscate  the  property  seized.  Thus,  if  the  seizure 
had  been  that  of  a  ship  loaded  with  contraband  of  war  which  had  been  unable, 
by  its  papers,  to  establish  satisfactorily  that  it  was  bound  for  a  neutral  port, 
it  should  be  considered  as  accomplished  in  conformity  with  the  principles  of 
"common"  law.  If  the  ship  owner,  however,  could  subsequently  furnish 
proof  of  the  peaceful  destination  of  the  ship  and  of  the  cargo,  so  as  to  preclude 
any  right  of  confiscation  in  favor  of  the  belligerent  as  to  the  ship  or  cargo, 
that  fact  would  exclude  the  right  of  prize  condemnation,  but  would  not  change, 
as  regards  capture,  the  relations  between  the  belligerent  in  whose  name  the 
seizure  may  have  been  made,  and  the  ship  owner  and  the  owners  of  the  goods 
who  may  have  suffered  damage  on  account  of  the  seizure.  The  government 
of  the  belligerent  state  in  whose  name  the  seizure  may  have  been  made  would 
certainly  not  be  civilly  liable  for  these  damages.  The  whole  matter  reduces 
itself  to  examining  and  deciding  whether,  considering  the  circumstances  under 


OF   THE   RIGHT   OF   CAPTURE    IN   NAVAL    WAR  703 

which  the  capture  has  been  made,  it  had  a  plausible  and  justifiable  reason. 
If  the  court  has  ascertained  the  existence  of  such  reason,  all  responsibility  on 
the  part  of  the  government  must  reasonably  be  denied,  and  the  responsibility 
will  fall  upon  the  ship  owner  or  the  captain  towards  the  owners  of  the  cargo 
who  have  suffered  damage  on  account  of  the  seizure.  For  the  captain,  in 
sailing  in  time  of  war  without  having  on  board  absolutely  regular  papers,  has 
afforded  the  belligerent  a  just  reason  for  considering  him  as  an  enemy  and  for 
seizing  the  ship  and  its  cargo.  In  view,  also,  of  the  fact  that  in  the  proceed- 
ings for  the  validation  of  the  prize,  the  captured  party  may  be  able  fully  to 
prove  that  the  ship  does  not  belong  to  the  enemy  and  has  not  violated  the 
duties  of  neutrality,  so  as  absolutely  to  exclude,  on  the  part  of  the  vessel,  any 
act  of  hostility  likely  to  cause  it  to  be  considered  an  enemy,  that  fact  would 
result  in  denying  the  right  of  the  belligerent  to  confiscate  the  property  seized, 
but  could  not  in  any  way  interfere  with  his  right  to  make  the  seizure,  since 
we  have  supposed  that  it  took  place  under  circumstances  when,  according  to 
international  law,  a  well-founded  and  plausible  reason  for  seizure  existed. 
How,  then,  could  there  be  any  responsibility  of  the  government  for  the  dam- 
age sustained?  Such  responsibilitj'  could  only  exist  in  the  second  contingency 
contemplated  in  our  rule,  namely,  when  the  seizure,  although  made  for  a 
reason  apparently  legitimate,  may  sub.sequently  have  been  maintained  owing 
to  irregularities  in  the  procedure  which  should  have  been  but  was  not  followed,, 
or  owing  to  an  unjustified  delay  in  the  closing  of  the  proceedings  and  in  the 
decision  as  to  the  validity  of  the  seizure. 


JUDGMENT  IN  THE  CASE  OF  THE  DESTRUCTION  OF  THE  CAPTURED 

SHIP 

1940.  When  the  commander  of  the  cruiser  which  has  made  the 
seizure  is  unable  to  take  the  prize  to  a  safe  anchorage  and  has 
therefore  sunk  it,  he  is  bound  as  a  rule  to  make  compensation  for 
any  damage  caused  and  he  cannot  be  exonerated  unless  the  prize 
court,  on  the  merits  of  the  case,  has  decided  that  the  belligerent 
had  the  right  to  confiscate  the  destroyed  ship  and  cargo. 

Assuming,  however,  that  the  belligerent  had  the  right  to  con- 
fiscate only  the  ship  and  a  part  of  the  cargo,  he  should  be  held 
liable  for  all  damages  caused  to  the  owners  of  the  portion  of  the 
cargo  with  respect  to  which  there  was  no  right  of  prize  condemna- 
tion. 

PROCEEDINGS   CONCERNING   THE    RIGHTFULNESS    OF   THE    PRIZE 

1941.  No  belligerent  state  shall  have  the  right  to  appropriate 
a  ship  or  its  cargo  seized  in  time  of  war,  unless  a  judgment  of  the 
international  court  has  recognized  its  right  of  prize  over  the  ship 
or  the  cargo. 


704  INTERNATIONAL    LAW    CODIFIED 

WHEN   CAN   A    SHIP    BE    CONFISCATED? 

1942.  The  right  of  prize  in  a  ship  can  only  be  accorded  to  a 
belHgerent  in  the  following  cases: 

1st.  If  it  belongs  to  the  navy  or  is  attached  thereto  (rules  1628- 
1629)  or  if  it  is  a  privateer,  assuming  that  privateering  is  resorted 
to  (see  rules  1640,  1642); 

2d.  If  it  is  the  property  of  private  persons,  nationals  of  the 
enemy  state,  assuming  that  the  exceptional  right  of  capturing 
private  enemy  property  contemplated  in  rules  1716  and  following 
is  admitted; 

3d.  If,  being  a  neutral  ship  carrying  contraband  of  war,  it  is 
subject  to  the  right  of  prize  under  the  rules  hereinbefore  laid 
down  (see  rules  1872  et  seq.) ; 

4th.  If  it  is  guilty  of  violating  or  of  an  attempt  to  violate  a 
blockade  under  the  provisions  of  rule  1848; 

5th.  If  the  acts  by  which  it  has  by  force  resisted  the  summons  to 
submit  to  visit,  are  such  as  to  cause  it  to  be  assimilated  to  a  hostile 
ship  (see  rule  1873  /) ; 

6th.  If  it  is  guilty  of  participating  in  acts  of  hostility  committed 
in  the  name  and  in  the  interest  of  the  enemy  (see  rule  1872). 

WHEN    CAN   A   SHIP's    CARGO    BE    CONFISCATED? 

1943.  The  belligerent  shall  have  the  right  of  prize  over  the  whole 
cargo  only  in  case  of  violation  of  blockade.  In  any  other  case, 
non-contraband  goods  on  board  a  ship  subject  to  confiscation 
must  be  restored  to  their  owners,  but  without  any  obligation  of 
the  captor  government  to  indemnify  them  for  damages  arising 
from  the  seizure. 

This  rule  tends  to  restrict  within  just  limits  the  right  of  prize.  Assuming 
that  the  ship  is  engaged  in  hostile  acts  and  that,  by  reason  of  these  acts,  it 
becomes  an  enemy,  it  does  not  follow  that  the  owners  of  the  goods  who,  for 
commercial  purposes,  have  used  the  ship  for  the  peaceful  carriage  of  their 
goods,  are  to  be  treated  as  enemies.  It  must  be  said  that,  even  according  to 
the  exceptional  right  which  allows  the  con6scation  of  enemy  merchant  ships, 
it  is  admitted  that  the  right  of  prize  cannot  include  neutral  goods  on  board. 
Therefore,  in  none  of  the  contingencies  in  which  the  ship  would  become  an 
enemy  by  the  act  of  the  shipowner  or  of  the  captain,  could  the  extension  of 
the  right  of  prize  to  the  goods  belonging  to  neutral  citizens — which  goods  by 
chance  are  on  board  such  vessel — be  justifiable.  In  case  of  blockade,  it  is  the 
destination  of  the  goods  for  the  blockaded  port  which  constitutes  the  act  of 


OF   THE   RIGHT   OF   CAPTURE    IN   NAVAL  WAR  705 

hostility,  aud  it  is  reasonable  then  to  admit  that  the  beUigerent  has  the  right 
of  prize  over  the  ship  and  the  cargo,  as  he  has  also  undoubtedly  the  right  to 
appropriate  to  his  own  use  any  arms  brought  to  the  enemy  to  enable  him  to 
continue  his  resistance.  Thus,  in  case  of  confiscation  for  carriage  of  contra- 
band, the  right  of  prize  (supposing  it  applicable  not  only  to  the  prohibited 
goods  but  to  the  ship  as  well),  could  never  be  extended  to  include  non-contra- 
band goods  belonging  to  peaceful  citizens  and  loaded  by  them  on  a  ship  with  a 
peaceful  destination,  without  indirectly  invoking  the  maxim:  roba  del  nemico 
confisca  quella  del  amico.  [The  confiscation  of  the  enemy's  goods  entails  that 
of  the  friend's  goods.] 

We  have  not  admitted  the  state's  obligation  to  pay  damages  to  the  owners, 
to  whom  the  goods  must  be  restored,  for  the  injuries  they  may  have  sus- 
tained; because,  if  these  owners  are  entitled  to  indemnity  for  the  damage 
suffered  on  account  of  the  seizure,  they  must  bring  their  action  against  the 
shipowner  who  has  invited  the  damage  by  his  own  act,  and  not  against  the 
government  which  has  exercised  a  legitimate  right  in  time  of  war. 

WHEN   MUST   THE   RIGHT   OF   PRIZE   BE    DENIED? 

1944.  The  claim  of  prize  over  a  ship  shall  not  be  entertained 
when  the  belligerent  undertakes  to  base  this  right  on  his  own  law, 
and  especially  on  that  promulgated  at  the  beginning  of  the  war. 
The  right  of  prize,  indeed,  must  have  as  its  basis  the  rules  of 
"common"  international  law  which  must  govern  the  rights  of 
the  belligerents;  otherwise,  it  could  not  be  considered  as  lawfully 
exercised. 

1945.  The  right  of  prize  shall  never  be  recognized  when  a  ship 
has  been  seized  after  the  term  fixed  in  the  preliminaries  of  peace 
for  the  cessation  of  hostilities,  and  the  ignorance  of  the  captor 
war-ship  that  hostilities  had  ceased  does  not  affect  the  matter. 

1946.  The  capture  of  a  ship  seized  in  neutral  territorial  waters, 
although  meeting  the  other  conditions  required  for  confiscation 
according  to  the  "common"  law  of  nations,  shall  be  declared  un- 
lawful. If,  then,  it  is  proved  that  the  belligerent  has  made  the 
capture  in  disregard  of  the  inviolability  of  neutral  territory,  the 
court  must  declare  the  prize  to  be  free. 

NATIONAL   SHIPS    RETAKEN 

1947.  The  right  of  prize  shall  not  be  recognized  with  regarti  t*) 
any  national  merchant  ship  or  ship  attached  to  the  service  of  the 
State  during  war  which,  having  been  taken  by  the  enemy,  shall 
have  been  retaken  before  the  International  Prize  Court  had  ad- 
judged it  to  the  captor  as  a  good  prize. 


706  INTERNATIONAL  LAW   CODIFIED 

1948.  Every  state  must  determine  by  its  laws  the  status  of 
merchant  ships  taken  by  the  enemy,  which  are  retaken  before 
having  been  legally  adjudged  to  the  first  captor, 

A  reward  may  be  granted  to  those  who  shall  have  rtetaken  the 
ship,  or  shall  have  taken  or  rescued  it  after  abandonment  by  the 
capturing  belligerent;  but  it  shall  always  be  considered  contrary 
to  customary  law  to  apply  to  merchant  ships  seized  by  the  enemy 
and  retaken  before  having  been  legally  adjudged  to  him,  the  same 
rules  as  apply  to  enemy  ships  in  the  matter  of  the  right  of  confisca- 
tion and  prize  in  time  of  war. 

DECISION   OF   THE    PRIZE    COURT   AND   ITS   EXECUTORY   FORCE 

1949.  The  decision  of  the  prize  court  shall  state  the  reasons  on 
which  it  is  based,  and  the  facts  and  the  rules  of  law  on  which  the 
final  judgment  or  order  is  founded. 

It  shall  decide  as  to  the  lawfulness  or  unlawfulness  of  the  capture 
condemn  the  ship  or  the  cargo  or  a  portion  of  the  cargo  as  legiti- 
mate prize  or  order  the  liberation  or  restitution  of  free  articles 
to  their  legitimate  owners. 

It  must,  moreover,  provide  for  the  payment  of  damages,  when 
they  are  legally  due,  and  fix  all  the  expenses  of  the  proceedings 
and  those  arising  out  of  the  capture  and  custody  of  the  property 
seized. 

1950.  The  decision  shall  be  final  between  the  parties  and  deemed 
effective  to  determine  their  respective  rights. 

1951.  The  parties  legally  represented  in  the  proceedings  or 
legally  in  default  are  bound  to  consider  as  final  the  decision  of  the 
prize  court,  and  must  execute  the  decision  in  all  its  parts.  In  case 
of  refusal  so  to  do,  the  action  of  the  delinquent  party  shall  be 
deemed  in  violation  of  the  "common"  law  of  nations  and  may 
give  rise  to  all  the  measures  of  compulsion  established  for  the 
purpose  of  assuring  respect  for  and  compliance  with  international 
obligations. 

1952.  The  states  which  have  signed  and  ratified  or  adhered  to 
the  XI  1th  Hague  Convention  of  1907  must  be  considered  as  legally 
bound  to  comply,  in  naval  war,  with  the  conventional  rules  adopted 
by  them  with  respect  to  the  International  Prize  Court. 

These  rules  shall,  therefore,  have  binding  legal  force,  subject, 


OF  THE   RIGHT   OF   CAPTURE   IN   NAVAL   WAR  707 

however,  to  the  express  condition  that  the  said  Convention  shall 
apply  as  of  right  only  in  case  tiie  belligerent  Powers  are  all  parties 
to  the  Convention  or  have  adhered  thereto. 

With  respect  to  the  other  States  which  have  not  signed  and 
ratified  or  adhered  to  the  Convention,  it  must  be  considered  as  the 
most  exact  expression  of  the  general  principles  of  law. 

The  Convention  which  bears  the  title  Convention  relative  to  the  creation  of  an 
International  Prize  Court  is  a  part  of  the  Hague  General  Act  of  October  18, 
1907.  It  was  signed  on  June  30,  1908,  In'  ahiiost  all  the  states  represented. 
On  that  date  it  lacked  the  signatures  of  Brazil,  China,  the  Dominican  Re- 
public, Great  Britain,  Greece,  Japan,  Luxemburg,  Peru,  Portugal,  Roumania, 
and  Venezuela. 

It  was  signed  subject  to  a  reservation  as  to  article  15  by  Chile,  Cuba,  Ecua- 
dor, Guatemala,  Haiti,  Persia,  Salvador,  Siam,  Turkey  and  Uruguay. 

The  text  of  the  Convention  follows: 

PART  I 

GENERAL   PROVISIONS 

Article  1.  The  validity  of  the  capture  of  a  merchant  ship  or  its  cargo  is  decided 
before  a  prize  court  in  accordance  with  the  present  Convention  when  neutral  or 
enemy  properly  is  involved. 

Art.  '?.  Jurisdiction  in  rnatters  of  prize  is  exercised  in  the  first  instance  by 
the  prize  courts  of  the  belligei-eid  captor. 

The  judgments  of  these  courts  are  pronounced  in  public  or  are  officially  notified 
to  parlies  concerned  who  are  neutrals  or  enemies. 

Art.  3.  The  judgments  of  national  prize  courts  may  be  brought  before  the 
International  Prize  Court: 

1.  When  the  judgment  of  the  national  prize  courts  affects  the  property  of  a 
neulral  Power  or  individual; 

2.  When  the  judgment  affects  enemy  property  and  relates  to: 

(a)  Cargo  on  board  a  neutral  ship: 

(b)  An  enemy  ship  captured  in  the  territorial  waters  of  a  neulral  Power,  when 

that  Power  has  not  made  the  capture  the  subject  of  a  diplomatic  claim; 

(c)  A  claim  based  upon  the  allegation  that  the  seizure  has  been  effected  in  viola- 

lion,  either  of  the  provisions  of  a  convention  in  force  between  the  bel- 
ligerent Powers  or  of  an  enactment  issued  by  the  belligerent  captor. 

The  appeal  against  the  judgment  of  the  national  court  can  be  based  on  the  ground 
that  the  judgment  was  wrong  either  in  fact  or  in  law. 

Art.  4-    An  appeal  may  be  brought: 

t.  By  a  neutral  Power,  if  the  judgment  of  the  national  tribunals  injuriously 
affects  its  property  or  the  properly  of  Us  nationals  (article  8,  no.  1)  or  if  the  cap- 
ture of  an  enemy  vessel  is  alleged  to  have  taken  place  in  the  territorial  waters  of 
that  Power  (article  3,  no.  21)); 

2.  liy  a  neutral  imlividunl,  if  the  judgment  nf  the  national  court  injuriously 
affects  his  property  (article  3,  no.  1)  subject,  however,  to  the  reservation  that  the 
Power  to  which  he  belongs  may  forind  him  lo  l)ring  the  case  Ijefore  the  Court,  or  ynay 
itself  undertake  the  proceedings  in  his  place; 


708  INTEKNATIONAL   LAW    CODIFIED 

3.  By  an  individual  subject  ur  cilizeii  of  an  enemy  Power,  if  the  judgment  of 
the  national  court  injuriously  affects  his  property  in  the  cases  referred  to  in  ar- 
ticle 3,  no.  2,  except  that  mentioned  in  paragraph  b. 

Art.  5.  An  appeal  may  also  be  brought  on  the  same  conditions  as  in  the  pre- 
ceding article,  by  persons  belonging  either  to  neutral  states  or  to  the  enemy,  deriving 
their  rights  from  and  entitled  to  represent  an  individual  qualified  to  appeal  and 
ivho  have  taken  part  in  the  proceedings  before  (he  national  court.  Persons  so  en- 
titled may  appeal  separately  to  the  extent  of  their  interest. 

The  same  rule  applies  in.  the  case  of  j)erso7is  belonging  either  to  neutral  slates  or 
to  the  enemy  who  derive  their  rights  from  and  are  entitled  to  represent  a  neutral 
Power  whose  properly  was  the  subject  of  the  decision. 

Art.  6.  When,  in  accordance  ivith  the  above  article  3,  the  International  Court 
has  jurisdiction,  the  national  courts  cannot  deal  ivith  a  case  in  more  than  two 
instances.  The  municipal  law  of  the  belligerent  captor  shall  decide  whether  the 
case  may  be  brought  before  the  I nter national  Court  after  judgment  has  been  given 
in  first  instance  or  only  after  an  appeal. 

If  the  national  courts  fail  to  give  final  judgment  within  two  years  from  the  date 
of  capture,  the  case  may  be  carried  direct  to  the  International  Court. 

Art.  7.  If  a  question  of  law  to  be  decided  is  covered  by  a  treaty  in  force  between 
the  belligerent  captor  and  a  Power  which  is  itself  or  ivhose  subject  or  citizen  is  a 
party  to  the  proceedings,  the  Court  is  governed  by  the  provisions  of  the  said  treaty. 

In  the  absence  of  such  provisions,  the  Court  shall  apply  the  rules  of  international 
law.  If  no  generally  recognized  rule  exists  the  Court  shall  give  judgment  in  ac- 
cordance with  the  general  principles  of  justice  and  equity. 

The  above  provisions  apply  equally  to  questions  relating  to  the  order  and  mode 
of  proof. 

If,  in  accordance  with  Article  3,  no.  2,  c,  the  ground  of  appeal  is  the  violation 
of  an  enactment  issued  by  the  belligerent  captor,  the  Court  will  enforce  the  enact- 
ment. 

The  Court  may  disregard  failure  to  comply  ivilh  the  procedure  laid  down  in 
the  enactments  of  the  belligerent  captor,  when  it  is  of  opinion  that  the  consequences 
of  complying  therewith  are  unjust  and  inequitable. 

Art.  8.  If  the  Court  pronounces  the  capture  of  the  vessel  or  cargo  to  be  valid, 
they  shall  be  disposed  of  in  accordance  with  the  laws  of  the  belligerent  captor. 

If  it  pronounces  the  capture  to  be  null,  the  Court  shall  order  the  restitution  of 
the  vessel  or  cargo,  and  shall  fix,  if  there  is  occasion,  the  amount  of  the  damages. 
If  the  vessel  or  cargo  shall  have  been  sold  or  destroyed,  the  Court  shall  determine 
the  compensation  to  be  given  to  the  owner  on  this  account. 

If  the  national  court  pronounced  the  capture  to  be  null,  the  Court  can  only  be 
asked  to  decide  as  to  the  damages. 

Art.  9.  The  contracting  Poioers  undertake  to  submit  in  good,  faith  to  the  deci- 
sions of  the  International  Prize  Court  and  to  carry  them  out  with  the  least  possible 
delay. 


OF   THE   RIGHT    OF    CAPTURE    IN    NAVAL    WAR  709 

PART   II 
CONSTITUTION    OF   THE    INTERNATIONAL    PRIZE    COURT 

Art.  10.  The  International  Prize  Court  is  composed  of  judges  and  deputy 
judges,  who  uyill  be  appointed  by  the  contracting  Powers,  and  must  all  be  jurists 
of  known  proficiency  in  questions  of  international  maritime  law,  and  of  the  highest 
moral  reputation. 

The  appointment  of  these  judges  and  deputy  jiulges  shall  be  made  within  six 
months  after  the  ratification  of  the  present  Convention. 

Art.  11.  The  judges  and  deputy  judges  are  appointed  for  a  period  of  six  years, 
reckoned  from  the  date  on  which  the  notification  of  their  appointment  is  received 
by  the  Administrative  Council  established  by  the  Convention  for  the  pacific  settle- 
ment of  international  disputes  of  the  :29th  July,  1S99.  Their  appointments  can 
be  renewed. 

Shoidd  one  of  the  judges  or  depidy  judges  die  or  resign,  the  same  procedure  is 
followed  for  filling  the  vacancy  as  ivas  followed  for  appointing  him.  In  this  case, 
the  appointment  is  made  for  a  fresh  period  of  six  years. 

Art.  12.  The  judges  of  the  International  Prize  Court  are  all  equal  in  rank 
and  have  precedence  nccording  to  the  date  on  which  the  notification  of  their  ap- 
pointment was  received  {article  11,  paragraph  1),  aiul  if  they  sit  by  rota  {article  15, 
paragraph  2),  according  to  the  date  on  which  they  entered  upon  their  duties.  When 
the  date  is  the  same  the  senior  in  age  takes  precedence. 

The  deputy  judges  when  acting  are  assimilated  to  the  judges.  They  rank,  how- 
ever, after  them. 

Art  13.  The  judges  enjoy  diplomatic  privileges  and  immunities  in  the  per- 
formance of  their  duties  and  when  outside  their  own  country. 

Before  taking  their  seat,  the  judges  must  swear,  or  make  a  solemn  promise  be- 
fore the  Administrative  Council,  to  discharge  their  duties  impartially  and  con- 
scientiously. 

Art.  14.  The  Court  is  composed  of  fifteen  judges;  nine  judges  constitute  a 
quorum. 

A  judge  xvho  is  absent  or  prevented  from  sitting  is  replaced  by  the  deputy  judge. 

Art.  15.  The  judges  appointed  by  the  following  contracting  Poivers;  Ger- 
many, the  United  States  of  America,  Austria-Hungary,  France,  Great  Britain, 
Italy,  Japan,  and  Russia  are  always  summoned  to  sit. 

The  jiulges  and  deputy  judges  appointed  by  the  other  contracting  Powers  sit  by 
rota  as  shown  in  the  table  annexed  to  the  present  Convention;  their  duties  may 
be  performed  successively  by  the  same  person.  The  same  judge  may  be  appointed 
by  .several  of  the  said  Powers. 

Art.  16.  If  a  belligerent  Power  has,  according  to  the  rota,  no  judge  sitting  in 
the  Court,  it  may  ask  that  the  judge  appointed  by  it  should  take  part  in  the  settle- 
merd  of  all  cases  arising  from  the  war.  Lots  shall  then  be  drawn  as  to  which 
of  the  judges  entitled  to  sit  according  to  the  rota  shall  withdraw.  This  arrange- 
merd  does  not  affect  the  judges  appointed  by  the  other  belligerent. 

Art.  17.  No  juflge  can.  sit  who  has  been  a  parly,  in  any  ivay  whatever,  to  the 
sentence  pronounced  by  the  national  courts,  or  has  taken  part  in  the  case  as  counsel 
or  advocate  for  one  of  the  parties. 

No  judge  or  deputy  judge  can,  during  his  tenure  of  office,  appear  as  agent  or 
arlvocate  before  the  I nlerruitional  Prize  Court,  nor  act  for  one  of  the  parties  in  any 
capacity  whatever. 

Art.  18.  The  belligerent  captor  is  entitled  to  appmnt  a  naval  officer  of  high 
rank  to  sit  as  assessor,  but  ivitli   no   vince  in  the  decision.     A  neutral  Power, 


710  INTERNATIONAL   LAW   CODIFIED 

uifiich  is  a  party  to  the  -proceedings  or  whose  subject  or  ciLi?en  is  a  party,  has  the 
same  right  of  appointment;  if  as  the  result  of  thi,"  last  provision  more  than  one 
Power  is  concerned,  they  must  agree  among  themselves,  if  necessary  by  lot,  on  the 
officer  to  be  appointed. 

Art.  19.  The  Court  elects  its  president  and  vice-president  by  an  absolute  ma- 
jority of  the  voles  cast  After  tivo  ballots,  the  election  is  made  by  a  bare  majority, 
and,  in  case  the  votes  are  equal,  by  lot. 

Art.  20.  The  judges  on  the  International  Prize  Court  are  entitled  to  traveling 
allowances  in  accordance  with  the  regrdations  in  force  in  their  own  country,  and 
in  addition  receive,  ivhile  the  Court  is  silting  or  while  they  are  carrying  out  duties 
conferred  upon  them  by  the  Court,  a  sum  of  100  N etherlatul  florins  per  diem. 

These  payments  are  included  in  the  general  expenses  of  the  Court  dealt  with  in 
Article  Ifi,  and  are  paid  through  the  International  Bureau  established  by  the 
Convention  of  the  29th  July,  1899. 

The  judges  may  not  receive  from  their  own  Government  or  from  that  of  any 
other  Power  any  remuneration  in  their  capacity  of  members  of  the  Court. 

Art.  21.  The  seat  of  the  Inlernutional  Prize  Court  is  at  The  Hague  and  it 
cannot,  except  in  the  cases  of  force  majeure,  be  transferred  elsewhere  without  the 
consent  of  the  belligerents. 

Art.  22.  The  Administrative  Council  fulfdls  with  regard  to  the  International 
Prize  Court,  the  same  functions  as  to  the  Permanent  Court  of  Arbitration,  but 
only  representatives  of  contracting  Powers  xvill  be  members  of  it. 

Art.  23.  The  International  Bureau  acts  as  registry  to  the  International  Prize 
Court  and  must  place  its  offices  and  staff  at  the  disposal  of  the  Court.  It  has  charge 
of  the  archives  and  carries  out  the  administrative  ivork. 

The  Secretary-General  of  the  Inlernational  Bureau  acts  as  registrar. 

The  necessary  secretaries  to  assist  the  registrar,  translators  and  short-hand 
writers  are  appointed  and  sworn  in  by  the  Court. 

Art.  24.  The  Court  determines  ichich  language  it  will  itself  use  and  what 
languages  may  be  used  before  it. 

In  every  case  the  official  language  of  the  national  courts  which  have  had  cog- 
nizance of  the  case  may  be  used  before  the  Court. 

Art.  25.  Powers  which  are  concerned  in  a  case  may  appoint  special  agents 
to  act  as  iyitermediaries  between  themselves  and  the  Court.  They  may  also  engage 
counsel  and  advocates  to  defend  their  rights  and  interests. 

Art.  26.  A  private  person  concerned  in  a  case  will  be  represented  before  the 
Court  by  an  attorney,  who  must  be  either  an  advocate  qualified  to  plead  before  a 
court  of  appeal  or  a  high  court  of  one  of  the  contracting  States,  or  a  lawyer  prac- 
tising before  a  similar  court,  or  lastly,  a  professor  of  law  at  one  of  the  higher  teach- 
ing centers  of  those  countries. 

Art.  27.  For  all  notices  to  be  served,  in  particular  on  the  parties,  witnesses 
or  experts,  the  court  may  apply  direct  to  the  Government  of  the  State  on  whose 
territory  the  service  is  to  be  carried  out.  The  same  rule  applies  in  the  case  of  steps 
being  taken  to  procure  evidence. 

The  requests  for  this  purpose  are  to  be  executed  so  far  as  the  ineans  at  the  dis- 
posal of  the  Power  applied  to  under  its  municipal  law  allow.  They  cannot  be 
rejected  xinless  the  Power  in  question  considers  them  calculated  to  impair  its  sov- 
ereign rights  or  its  safety.  If  the  request  is  complied  with,  the  fees  charged  must 
only  comprise  the  expenses  actually  incurred. 

The  Court  is  equally  entitled  to  act  through  the  Power  on  whose  territory  it  sUs. 

N^otices  to  be  given  to  parties  injhe  place  where  the  Court  sits  may  be  served 
through  the  International  Bureau. 


OP  THE   RIGHT   OF   CAPTURE    IN   NAVAL   WAR  711 

PART  III 
PROCEDURE   IN   THE   INTERNATIONAL  PRIZE   COURT 

Art.  28.  An  appeal  to  the  International  Prize  Court  is  entered  by  means  of 
a  xcritten  declaration  made  in  the  national  court  rchich  has  already  dealt  ivith  the 
case  or  addressed  lo  the  International  Bureau;  in  the  latter  case  the  appeal  can  be 
entered  by  telegram. 

The  period  unlhin  ichich  the  appeal  must  be  entered  is  fixed  at  ISO  days,  count- 
ing frorn  the  day  the  deciidon  is  delivered  or  notified  {article  2,  paragraph  2). 

Art.  29.  If  the  notice  of  appeal  is  entered  in  the  national  court,  this  Court, 
without  considering  the  question  whether  the  appeal  7cas  entered  in  due  time,  will 
within  seven  days  transmit  the  record  of  the  case  to  the  International  Bureau 

If  the  notice  of  appeal  is  se7it  to  the  International  Bureau,  the  Bureau  ivill 
innncdiately  inform  the  national  court,  when  possible  by  telegraph.  The  latter 
will  transmit  the  record  as  provided  in  the  preceding  paragraph. 

When  the  appeal  is  brought  by  a  neutral  individual  the  International  Bureau 
at  once  informs  by  telegraph  the  indivuhmVs  Government,  in  order  to  enable  it  to 
enforce  the  rights  it  enjoys  umler  Article  4,  paragraph  2. 

Art.  SO.  In  the  case  provided  for  in  Article  G,  paragraph  2,  the  notice  of  ap- 
peal can  be  addressed  to  the  International  Bureau  only.  It  must  be  entered  within 
thirty  days  of  the  expiration  of  the  period  of  two  years. 

Art.  31.  If  the  appellant  does  not  enter  his  appeal  within  the  period  laid 
down  in  Articles  2S  or  SO,  it  shall  be  rejected  withoid  discussion. 

Provided  that  he  can  show  that  he  was  prevented  from  so  doing  by  force  majeure, 
and  that  the  appeal  was  entered  within  sixty  days  after  the  circumstances  ivhich 
prevented  him  entering  it  before  had  ceased  to  operate,  the  Court  can,  after  hearing 
the  respondent,  grant  relief  from  the  effect  of  the  above  provision. 

Art.  S2.  If  the  appeal  is  entered  in  time,  a  certified  copy  of  the  notice  of  ap- 
peal is  forthwith  offiically  transmitted  by  the  Court  to  the  respondent. 

Art.  33.  If,  in  addition  to  the  parties  wJio  are  before  the  Court,  there  are  other 
parties  concerned  who  are  entitled  to  appeal,  or  if,  in  the  case  referred  to  in  Article 
29,  paragraph  3,  the  Government  which  has  received  notice  of  an  appeal  has  not 
announced  its  decision,  the  Court  will  await  before  dealing  with  the  ca.se  the  e.r- 
piration  of  the  period  laid  down  in  Articles  28  or  SO. 

Art.  34-  The  procedure  before  the  International  Court  includes  two  distinct 
parts:  the  urritten  pleadings  and  oral  discussions. 

The  written  pleadings  consist  of  the  deposit  and  exchange  of  cases,  counter- 
cases,  and,  if  necessary,  of  replies,  of  which  the  order  is  fixed  by  the  Court,  as 
also  the  periods  within  ivhich  they  must  be  delivered.  The  parties  annex  thereto 
all  papers  and  documerds  of  which  they  intend  to  make  use. 

A  certified  copy  of  every  document  produced  by  one  party  must  be  communi- 
cated to  the  other  party  through  the  medium  of  the  court. 

Art.  35.  After  the  close  of  the  pleadings,  a  public  sitting  is  held  on  a  day 
fixed  by  the  Court. 

At  this  sitting  the  parties  state  their  view  of  the  case  both  as  to  the  law  and  as 
to  the  fads. 

The  Court  may,  at  any  stage  of  the  proceedings,  su^perul  speeches  of  counsel, 
either  at  the  request  of  one  of  the  parties,  or  on  their  own  initiative,  in  order  that 
supplementary  evidence  may  he  obtained. 

Art.  36.  The  International  Court  may  order  the  supplementary  evidence  to 
he  taken  either  in  the  manner  protrided  by  Article  27,  or  before  it.^elf,  or  one  or 


712  INTERNATIONAL    LAW    CODIFIED 

more  of  the  members  of  the  Court,  provided  that  this  can  be  done  without  resort  to 
compulsion  or  the  use  of  threats. 

If  steps  are  to  be  taken  for  the  purpose  of  obtaining  evidence  by  members  of  the 
Court  outside  the  territory  where  it  is  sitting,  the  consent  of  the  foreign  Govern- 
ment must  be  obtained. 

Art.  37.  The  parties  are  summoned  to  take  part  in  all  stages  of  the  proceedings 
and  receive  certified  copies  of  the  minutes. 

Art.  38.  The  discussions  are  under  the  control  of  the  president  or  vice-presi- 
dent, or,  in  case  they  are  absent  or  cannot  act,  of  the  senior  judge  present. 

The  judge  appointed  by  a  belligerent  party  cannot  preside. 

Art.  39.  The  discussions  take  place  in  public,  subject  to  the  right  of  a  Govern- 
ment which  is  a  party  to  the  case  to  demand  that  they  be  held  in  private. 

Minutes  are  taken  of  these  discussions  and  signed  by  the  president  and  regis- 
trar, and  these  mimites  alone  have  an  authentic  character. 

Art.  40.  If  a  party  does  not  appear,  despite  the  fact  that  he  has  been  duly 
cited,  or  if  a  party  fails  to  comply  with  some  step  uyithin  the  period  fixed  by  the 
Court,  the  case  proceeds  without  that  party,  and  the  Court  gives  judgment  in  ac- 
cordance with  the  material  at  its  disposal. 

Art.  41.  The  Court  officially  notifies  to  the  parties  decrees  or  decisions  made 
in  their  absence. 

Art.  42.  The  Court  takes  into  consideration  in  arriving  at  its  decision  all 
the  facts,  evidence  and  oral  statements. 

Art.  4^.  The  Court  considers  its  decision  in  private  and  the  proceedings  are 
secret. 

All  questions  are  decided  by  a  majority  of  the  judges  present.  If  the  number 
of  judges  is  even  and  equally  divided,  the  vote  of  the  junior  judge  in  the  order  of 
precedence  laid  down  in  Article  12,  paragraph  1,  is  not  counted. 

Art.  44-  The  judgment  of  the  Court  must  give  the  reasons  on  which  it  is  based. 
It  contains  the  names  of  the  judges  taking  part  in  it,  arid  also  of  the  assessors,  if 
any;  it  is  signed  by  the  president  and  registrar. 

Art.  45.  The  sentence  is  pronounced  in  public  silting,  the  parties  concerned 
being  present  or  duly  summoned  to  attend;  the  sentence  is  officially  communicated 
to  the  parties. 

When  this  communication  has  been  made,  the  Court  transmits  to  the  national 
prize  court  the  record  of  the  case,  together  urith  copies  of  the  various  decisions  ar- 
rived at  and  of  the  minutes  of  the  proceedings. 

Art.  46.  Each  party  pays  its  own  costs.  The  party  against  whom  the  Court 
decides  bears,  in  addition,  the  costs  of  the  trial,  and  also  pays  1  per  cent  of  the 
value  of  the  subject-nmtter  of  the  case  as  a  contribution  to  the  general  expenses  of 
the  International  Court.  The  amount  of  these  payments  is  fixed  in  the  judgment 
of  the  Court. 

If  the  appeal  is  brought  by  an  indiiidual,  he  will  furnish  the  International 
Bureau  with  security  to  an  amount  fixed  by  the  Court,  for  the  purpose  of  guaran- 
teeing eventual  fulfillment  of  the  two  obligations  mentioned  in  the  preceding  para- 
graph. The  Court  is  entitled  to  postpone  the  opening  of  the  proceedings  until  the 
security  has  been  furnished. 

Art.  4'^ •  The  general  expenses  of  the  International  Prize  Court  are  borne  by 
the  contracting  Powers  in  proportion  to  their  share  in  the  composition  of  the  Court 
as  laid  doion  in  Article  15  and  in  the  annexed  table.  The  appointment  of  deputy 
judges  does  not  involve  any  contribution. 

The  Administrative  Council  applies  to  the  Powers  for  the  funds  requisite  for 
the  working  of  the  Court. 


OF   THE    RIGHT   OF   CAPTURE   IN    NAVAL    WAR  713 

Art.  4.8.  When  the  Court  is  not  dtting,  the  duties  conferred  upon  it  by  Article 
32,  Article  34,  paragraphs  2  and  3,  Article  So,  paragraph  1,  and  Article  46, 
paragraph  3,  are  discharged  by  a  delegation  of  three  judges  appointed  by  the  Court. 
This  delegation  decides  by  a  majority  of  voles. 

Art.  49.  The  Court  itself  draics  vp  its  own  rules  of  procedure,  which  77iust 
be  communicated  to  the  contracting  Potrers. 

It  will  meet  to  elaborate  these  rules  within  a  year  of  the  ratification  of  the  present 
Convention. 

Art.  50.  The  Court  may  propose  mndificntions  in.  the  provisions  of  the  present 
Convention  concerning  procedure.  These  proposals  are  communicated,  through 
the  medium  of  the  Netherland  Government,  to  the  contracting  Powers,  which  vnll 
consider  together  as  to  the  measures  to  be  taken. 

TITLE  IV 

FINAL   PROVISIONS 

Art.  51.  The  present  Convention  does  not  apply  as  of  right  except  when  the 
belligerent  Powers  are  all  parties  to  the  Convention. 

It  is  further  fully  wulerstood  that  an  appeal  to  the  International  Prize  Court 
can  only  be  brought  by  a  contracting  Power  or  the  subject  or  citizen  of  a  contract- 
ing Power. 

In  the  cases  mentioned  in  Article  5,  the  appeal  is  only  admitted  when  both  the 
owner  and  the  person  entitled  to  represent  him  are  equally  contracting  Powers 
or  the  subjects  or  citizens  of  contracting  Powers. 

N.  B.  We  do  not  give  the  subsequent  articles  (52-57),  which  refer  to  the 
ratification,  adhesion  and  entrance  into  force  of  the  Convention;  its  duration, 
fixed  at  12  years  from  the  date  of  its  coming  into  force,  with  tacit  renewal 
for  periods  of  six  years  unless  denounced;  the  method  of  amendment  and 
other  minor  provisions. 

[An  additional  protocol  was  signed  at  The  Hague,  September  19,  1910,  by 
the  representatives  of  the  United  States  of  America,  the  Argentine  Republic, 
Austria-Hungary,  Chile,  Denmark,  Germany,  Spain,  France,  Great  Britain, 
Jai)an,  Norway,  the  Netherlands,  and  Sweden,  among  some  of  whom  difficul- 
ties of  a  constitutional  nature  prevented  the  acceptance  of  the  Convention  of 
October  18,  1907.     The  protocol  contains  the  following  articles: 

Art.  1.  The  Poivers  signatory  or  adhering  to  the  Hague  Convention  of  Oc- 
tober 18,  1907,  relative  to  the  establishment  of  an  International  Court  of  Prize, 
which  are  prevented  by  difficulties  of  a  constitutional  nature  from  accepting  the 
said  Convention  in  its  present  form,  have  the  right  to  declare  in  the  instrument 
of  ratification  or  adherence  that  in  prize  cases,  whereof  their  national  courts  have 
jurisdiction,  recourse  to  the  International  Court  of  Prize  can  only  be  exercised 
against  them  in  the  form  of  an  action  in  damages  for  the  injury  caused  by  the 
capture. 

Art.  2.  In  the  case  of  recourse  to  the  International  Court  of  Prize,  in  the  form 
of  an  action  for  damages.  Article  S  of  the  Convention  is  not  applicable;  it  is  not 
for  the  Court  to  pa.'is  upon  the  validity  or  the  nullity  of  the  capture,  nor  to  reserve 
or  affirm  the  decision  of  the  national  tribunals. 

If  the  capture  is  consulered  illegal,  the  Court  determines  the  amount  of  damages 
to  he  allowed,  if  any,  to  the  claimants. 

Art.  3.  The  conditions  to  ivhirh  recourse  to  the  I nternaliotud  Court  of  Prize 
is  subject  by  the  Convention  are  appUcalde  to  the  action  in  damages. 


714  INTERNATIONAL    LAW    CODIFIED 

Art,  4  Under  reserve  of  the  prolusions  hereinafter  stated  the  rules  of  procedure 
established  by  the  Convention  for  recourse  to  the  International  Court  of  Prize 
shall  be  observed  in  the  action  in  damages. 

Art.  5.  In  derogation  of  Article  2S,  paragraph  1,  of  the  Convention,  the  suit 
for  damages  can  only  be  brought  before  the  International  Court  of  Prize  by  means 
of  a  ivritten  declaration  addressed  to  the  International  Bureau  of  the  Permanent 
Court  of  Arbitration;  the  case  may  even  be  brought  before  the  Bureau  by  telegram. 

Art.  6.  In  derogation  of  Article  29  of  the  Convention  the  International  Bureau 
shall  notify  directly,  and  if  possible,  by  telegram,  the  Government  of  the  belligerent 
captor  of  the  declaration  of  action  brought  before  it. 

The  Government  of  the  belligerent  captor,  without  considering  whether  the  pre- 
scribed periods  of  time  have  been  observed,  shall,  within  seven  days  of  the  receipt 
of  the  notificalion,  transmit  to  the  International  Bureau  the  case,  appending 
thereto  a  certified  copy  of  the  decision,  if  any,  rendered  by  the  national  court. 

Art.  7.  In  derogation  of  Article  4-5,  paragraph  2,  of  the  Convention  the  Court 
rendering  its  decision  and  notifying  it  to  the  parties  to  the  suit  shall  send  directly 
to  the  Government  of  the  belligerent  captor  the  record  of  the  case  submitted  to  it, 
appending  thereto  a  copy  of  the  various  intervening  decisions  as  well  as  a  copy 
of  the  minutes  of  the  preliminary  proceedings. — Transl.] 


TITLE  XXIII 

V 

THE  END  OF  WAR 

WHEN  IS  WAR  TO  BE  CONSIDERED  AS  ENDED? 

1953.  A  war  between  two  or  more  States  can  only  be  considered 
as  legally  ended  by  the  conclusion  of  peace,  stipulated  in  a  final 
treaty  of  peace. 

When  the  war  is  waged  by  a  people  against  a  State,  or  by  a  fac- 
tion, under  the  conditions  necessary  for  belligerency,  against  the 
established  government,  it  is  ended  by  the  complete  submission 
of  the  vanquished  to  the  victor. 

The  last  part  of  this  rule  finds  its  application  when  a  people  struggles  against 
the  constituted  power  for  the  purpose  of  settling  by  force  a  question  of  pubHc 
internal  law.  This  is  what  happens,  for  example,  in  the  case  of  a  war  of  seces- 
sion, that  is,  when  a  portion  of  the  population  of  the  State  undertakes,  by 
force  of  arms,  to  constitute  a  separate  and  independent  State,  or  when  the 
purpose  of  the  war  is  to  modify  the  political  constitution  of  the  State.  In 
both  of  these  ca.ses,  it  must  be  considered  as  ended  when  the  armed  struggle 
has  realized  the  object  contemplated,  namely,  that  of  modifying  the  organiza- 
tion of  the  public  powers  or  the  relations  with  the  sovereign  State,  those,  for 
instance,  of  vassal  or  colony.  In  none  of  these  contingencies  will  a  treaty  of 
peace  be  necessary;  the  war  will  be  considered  as  end(!d  by  the  realization  of 
the  accomplished  and  definitive  fact.  We  say  definitive,  having  in  mind  the 
rules  concerning  civil  war  (rules  124  et  seq.)  and  recognition  (rules  167  et  seq.). 

PRELIMINARIES   OF   PEACE 

1954.  War  may  not  be  considered  as  ended  by  the  mere  cessa- 
tion of  hostilities;  in  such  a  case  the  rules  governing  suspension  of 
arms  or  armistice  shall  be  applied. 

1955.  Military  occupation,  although  extendcnl  over  a  consider- 
able period  of  time  and  rondenid  stable  by  the  constitution  of  a 
government,  cannot  have  the  effect  of  causing  the  war  to  be  con- 
sidoHKl  as  legally  at  an  end,  as  a  result  of  the  tacit  relinquishment 
of  the  territory  occupied;  but  a  formal  treaty  shall  always  be  re- 
quir(!(l,  which  shall  recognize  the  new  state  of  affairs,  and  thus 
war  b(i  d(!clar(»d  at  an  end. 

71.5 


716  INTERNATIONAL    LAW    CODIFIED 

1956.  The  preliminaries  of  peace  duly  concluded  have  not  the 
effect  of  legally  putting  an  end  to  the  war;  they  have  merely  the 
legal  value  of  a  provisional  treaty  of  peace  stipulated  by  the  bellig- 
erent parties  with  the  object  of  concluding  peace  forthwith  upon 
the  bases  agreed  upon  between  them  through  the  preliminaries  of 
peace,  the  details  of  which  are  to  be  stated  with  precision  only  in 
the  final  treaty. 

The  preliminaries  of  peace  ought  not,  therefore,  to  be  regarded  as  mere 
preparatory  agreements,  as  compacts  de  contrahendo,  but  as  acts  acknowledging 
a  provisional  international  obligation  of  peace.  We  use  the  term  provisional, 
not  in  the  sense  that  the  agreement  may  be  considered  as  a  convention  of 
general  armistice  preparatory  to  negotiating  peace,  but  in  the  sense  that  the 
parties,  who  cannot  immediately  agree  on  the  detailed  terms  of  peace,  fix 
the  essential  conditions  of  such  peace,  and  reserve  their  right  to  negotiate 
forthwith  and  with  reciprocal  fairness  the  details  relating  to  minor  points, 
in  order  to  bring  to  realization  the  principal  points  already  agreed  upon  in  the 
preliminary  treaty. 

THE   TREATY   OF   PEACE 

1957.  Those  deemed  capable  of  stipulating  the  conditions  of 
peace  shall  be  the  persons  who  are  actually  in  possession  of  the 
sovereign  authority  and  to  whom  the  government  of  the  State  is 
intrusted. 

When  the  national  party,  which  represents  the  majority  of  the  citizens,  has 
established  a  provisional  government  in  place  of  the  legitimate  sovereign  who 
is  vanquished  and  a  prisoner,  or  has  abdicated,  or  is  for  any  reason  whatever 
actually  prevented  from  exercising  his  sovereign  powers,  the  persons  who  fulfill 
the  functions  of  the  sovereign  and  in  fact  constitute  the  government  must  be 
deemed  capable  of  consenting  to  the  conditions  of  peace. 

1958.  The  treaty  of  peace  shall  be  deemed  valid  when  it  fulfills 
the  conditions  required  for  the  validity  of  any  other  treaty.  (See 
rules  747  et  seg.,  757-758.) 

1959.  It  is  the  victor's  privilege  to  condition  the  conclusion  of 
peace  upon  such  terms  as  he  deems  most  likely  to  satisfy  his 
legitimate  rights. 

When,  however,  the  conditions  forced  by  the  victor  upon  the 
vanquished,  and  which  the  latter  cannot  refuse  to  discuss,  are  so 
severe  as  to  entail  the  economic,  political,  or  moral  ruin  of  the 
vanquished  state,  it  may  be  a  ground  for  convoking  the  Confer- 
ence, to  which  the  conditions  of  peace  are  submitted.  The  col- 
lective intervention  of  the  states  must,  indeed,  in  that  case  be 


THE  END   OF  WAR  717 

admitted  for  the  purpose  of  determining  thie  conditions  of  peace 
which  are  best  adapted  to  the  principles  of  international  justice, — 
principles  that  the  victor  cannot  with  impunity  violate  to  the 
detriment  of  the  vanquished.  (See  rules  559,  788,  1212g,  1240g 
and  h.) 

1960.  The  forced  cession  of  a  portion  of  the  territory  of  the 
vanquished  state  may  be  imposed  as  a  condition  of  peace,  but  it 
cannot  be  deemed  valid  unless  stipulated  in  a  treaty  of  peace 
properly  concluded  in  conformity  with  the  rules  which  must 
govern  the  cession  of  territory  between  states. 


RATIFICATION    OF   THE   TREATY    OF    PEACE 

1961.  When,  under  the  provisions  of  constitutional  law,  peace 
can  only  be  concluded  on  condition  that  the  treaty  be  ratified  by  the 
legislative  bodies,  the  war  must  be  considered  at  an  end  by  the 
stipulation  of  the  treaty  of  peace,  but  subject  to  the  condition 
subsequent  of  ratification.  The  agreement  must,  however,  be 
regarded  as  effective  and  cannot  be  considered  as  broken  unless 
the  legislative  assemblies  have  expressly  refused  to  ratify  the  treaty. 

1962.  As  soon  as  the  decision  not  to  ratify  the  treaty  has  been 
finally  reached,  the  law  of  war  shall  once  more  be  in  full  force  and 
hostile  acts  may  again  be  undertaken  without  reservation  or  con- 
dition. 

1963.  In  no  case  can  there  be  any  interference  with  the  right  of  a 
party  concerned  in  the  case  to  bring  about  the  meeting  of  a  Con- 
ference and  to  submit  the  treaty  of  peace  to  that  assembly  in  order 
to  have  it  revoked  or  modified,  when  the  conditions  imposed  by  the 
victor  may  be  considered  as  too  detrimental  to  the  legitimate  rights 
of  the  vanquished  state  or  contrary  to  the  general  principles  of 
iiitcinational  law. 


METHOD    OF   EXECUTING   THE   TREATY 

1964.  The  provisions  of  the  treaty  of  peace,  until  revoked,  must 
be  executed  with  integrity  and  good  faith  and  deemed  binding 
upon  the  state  wliich  has  acceplx'd  them,  even  wIktc  they  were 
imposed  by  the  victor  tlirough  prepoiideraiu^e  of  his  military  force, 


718  INTERNATIONAL    LAW    CODIFIED 

their  effect  being  to  modify  the  respective  historical  conditions  of 
the  two  adversaries  and  the  rights  previously  acquired  by  each 
of  them.    (Compare  rule  757.) 

GENERAL   EFFECTS    OF   THE   TREATY   OF   PEACE 

1965.  The  general  effect  of  the  conclusion  of  peace  is  a  renuncia- 
tion on  the  part  of  the  two  belligerent  states  of  any  action  re- 
lating to  the  facts  which  brought  about  the  war  and  of  all  differ- 
ences which  gave  rise  thereto,  it  being  admitted  that  everything  is 
finally  settled  by  the  treaty  of  peace. 

1966.  The  treaty  of  peace,  according  to  "common"  law,  pro- 
duces certain  general  cfTects,  which  are: 

(a)  The  absolute  cessation  of  every  act  of  hostility  from  the  day 
of  its  signature  and  ratification,  and  the  nullity  of  any  act  of  war- 
fare accomplished  in  ignorance  of  the  conclusion  of  peace; 

(b)  The  release  of  prisoners  of  war; 

(c)  The  re-establishment  in  force  of  the  treaties  previously  con- 
cluded between  the  two  states  and  suspended  on  account  of  the 
war; 

(d)  General  amnesty; 

(e)  The  restoration  of  the  exercise  of  the  rights  of  sovereignty 
suspended  during  the  war; 

(/)  The  recognition  of  actual  possessions  at  the  time  of  the  con- 
clusion of  peace,  when  not  otherwise  provided  in  the  treaty  itself. 

1967.  It  is  incumbent  upon  the  parties  to  determine  in  the 
treaty  of  peace  with  clearness  and  precision  the  effects  of  the  ces- 
sation of  the  war;  carefully  to  avoid  surprises;  to  eliminate  am- 
biguities with  the  greatest  attention ;  not  to  leave  unprovided  any 
matter  likely  to  give  rise  to  discussion;  and  to  avoid  subtleties 
which  may  bring  about  misunderstandings  and  dififerences  of 
interpretation. 

CESSATION   OF    HOSTILITIES 

1968.  The  parties  must  state  in  the  preliminaries  of  peace  the 
day  on  which  hostilities  must  cease  during  the  time  necessary  for 
the  ratification  of  the  treaty  as  concluded  and  signed,  or  stipulate 
a  general  armistice  until  the  treaty  is  ratified. 


THE   END   OF   WAR  719 

In  the  absence  of  all  agreement  in  the  matter,  acts  of  hostility 
can  only  be  considered  unlawful  from  the  time  peace  must  be 
deemed  to  be  finally  concluded  bj'  the  ratification  of  the  treaty 
of  peace  stipulated. 

During  the  Russo-Japanese  war,  hostilities  continued  while  the  treaty  of 
peace  signed  on  September  5,  1905,  was  being  ratified;  they  stopped  effectively 
only  on  the  16th  of  the  same  month  by  virtue  of  the  armistice  conventioiv 
concluded  September  14th. 


PRISONERS   OF   WAR 

1969.  Prisoners  of  war  are  entitled  to  be  set  free  on  the  conclu- 
sion of  peace,  unless  they  have  been  found  guilty  of  offenses  com- 
mitted during  their  captivity.  They  must  not  be  detained  to 
answer  for  other  previous  offenses. 

TREATIES   SUSPENDED    DURING    WAR 

1970.  Once  peace  is  concluded,  all  the  treaties  between  the  two 
states  which  are  compatible  with  the  new  state  of  affairs  created 
by  the  treaty  of  peace  (unless,  however,  it  provides  otherwise), 
re-enter  into  force.    (Compare  rules  845  and  859.) 

AMNESTY 

1971.  When  provided  for  in  a  general  way  in  the  treaty  of  peace, 
amnesty  must  embrace  in  principle  all  offenses  of  a  political  char- 
acter committed  tluring  the  war  by  the  belligerents  themselves  or 
by  persons  belonging  to  the  respective  military  forces. 

Under  this  head  must  come  all  offenses  committed  in  violation 
of  the  laws  and  customs  of  war,  which  nmst  be  deemed  blotted  out 
by  amnesty,  and  persons  convicted  must  be  releasetl  on  the  con- 
clusion of  peace. 

Amnesty  cannot  as  a  rule  (;over  "common"  law  offenses  com- 
mitted during  war  by  individuals,  who  arc  amenable  to  the  ordin- 
ary courts  and  punishable  by  "common"  law. 


720  INTERNATIONAL   LAW    CODIFIED 

RE-ESTABLISHMENT   OF  THE    EXERCISE    OF    THE    RIGHTS   OF   SOVER- 
EIGNTY 

1972.  Peace  once  concluded,  the  respective  states  must  be 
deemed  ipso  jure  reinstated  in  the  free  exercise  of  all  their  rights 
over  all  parts  of  the  territory  of  their  states  recovered  by  them 
under  the  treaty  of  peace,  and  over  all  persons  under  their  juris- 
diction, subject  to  the  conditions  named  in  the  treaty. 

1973.  If  the  rule  of  the  statu  quo  ante  helium  has  been  stipulated 
in  the  treaty  of  peace,  it  must  be  so  construed  and  applied  as  not 
to  conflict  with  the  rights  acquired  by  individuals  during  the  war, 
and,  saving  an  express  declaration  to  the  contrary,  the  following 
rules  must  be  observed. 

1974.  The  sovereign  reinstated  in  the  possession  of  his  territory 
will  have  the  right  to  restore  everything  to  its  previous  condition 
in  so  far  as  public  administration  is  concerned;  but  he  must  take 
into  account  the  legal  consequences  arising  from  the  military  oc- 
cupation of  the  territories  restored  to  him. 

He  cannot  exercise  his  sovereign  rights  retroactively,  but  will 
have  to  respect  all  acts  accomplished  under  the  laws  and  customs 
of  war  and  all  rights  acquired  by  individuals  during  the  occupa- 
tion, whether  derived  from  contracts  legally  concluded  or  from 
judgments  pronounced  during  the  occupation  and  considered  final. 
(Compare  rules  1542,  1561,  1567.) 

1975.  The  said  sovereign  must  take  into  account  the  laws  and 
regulations  proclaimed  by  the  enemy  authorities  and  the  legal  con- 
sequences arising  therefrom  during  the  interregnum. 

He  will  have  the  right  to  subject  to  the  authority  of  his  own  laws 
and  regulations  (which  re-enter  into  force  ipso  jure  ipsoque  facto) 
any  act,  right,  or  expectation,  from  the  time  he  has  been  reinstated; 
but  he  must  respect  already  perfected  rights  acquired  by  individ- 
uals during  the  hostile  military  occupation. 

1976.  The  reinstated  sovereign  shall  be  considered  as  restored 
at  once  to  the  possession  of  his  rights  of  territorial  sovereignty 
even  with  respect  to  the  enemy  who  has  militarily  occupied  the 
recovered  territory. 

Accordingly,  the  political  laws  and  public  law  of  the  State  shall 
recover  their  full  authority  and  the  promulgation  of  the  treaty 
which  restores  the  status  quo  ante  bellum  will  authorize  the  sover- 


THE    END    or    WAK  721 

eign  to  repeal  all  modifications  introduced  into  the  said  laws  and 
into  public  law  during  the  military  occupation,  saving  the  respect 
due  to  vested  rights  acquired  by  third  parties. 

1977.  Property  must  be  restored  to  the  condition  existing  when 
the  enemy  took  possession  of  it,  subject  to  the  reservation  of 
changes  and  damage  Avhicli  have  been  the  natural  consequence 
of  the  acts  or  operations  of  war. 

It  may  be  said,  in  application  of  this  rule,  that  a  stronghold,  for  instance, 
must  be  restored  to  its  condition  before  capture,  provided  that  it  was  still  in 
the  same  condition  at  the  time  of  the  conclusion  of  peace.  Supposing  that  it 
had  been  disarmed  and  dismantled  during  the  war,  and  that  no  provision 
concerning  it  was  contained  in  the  treaty  of  peace,  the  party  to  whom  the 
fortress  ought  to  be  restored  could  not  claim  that  the  other  party  should  be 
bound  to  undertake  the  necessary  work  for  replacing  that  fortress  in  the 
statu  qiio  ante  helium.  That  party  could  only  be  so  bound  if  he  had  disarmed 
and  dismantled  the  fortress  subsequently  to  the  conclusion  of  peace. 


RULES   RESPECTING    THE    PRESENT    STATE    OF   POSSESSION 

1978.  If,  in  the  treaty  of  peace,  the  clause  uti  possidetis  has  been 
incorporated,  it  would  apply  to  the  property  belonging  to  the  two 
belligerent  states,  the  possession  of  which  they  may  have  acquired 
in  consequence  of  the  events  of  war.  But,  even  in  that  case,  the 
rights  of  ownership  of  individuals,  who,  deprived  of  their  property 
during  the  war,  might  be  entitled  to  indemnity,  must  be  reserved. 

The  expression  uti  possidetis,  accepted  to  indicate  the  confirmation  of  the 
present  state  of  possession,  must  l)e  understood  as  signifying  that,  under  that 
clause,  all  the  property  which  one  or  the  other  party  has  taken  possession  of 
during  the  war  must  remain  in  its  status  of  ownership  as  of  the  time  of  the  con- 
clusion of  peace.  Therefore,  under  the  said  clause,  the  personal  property  of  the 
enemy  state  (such  as  cannon,  arms,  ammunition,  money,  horses,  means  of 
transport)  taken  by  the  adversary  during  the  invasion  of  the  enemy  territory, 
as  also  the  i)roceeds  of  personal  i)roperty  collected  by  liim,  nmst  remain  in 
the  hands  of  the  present  possessor.  It  must  also  be  admitted,  under  the  same 
clause,  that  when  nothing  to  the  contrary  has  been  stipulated  in  the  treaty  of 
peace,  certain  portions  of  the  conquered  territory  must  be  considered  as 
transferred  to  the  possessor,  whose  conquest  must  thus  be  regarded  as  legiti- 
mated.    (Compare  Oppenheim,  op.  cit.,  v.  2,  §  273.) 

1979.  The  parties  who,  by  adopting  the  uli  possidetis  clause  in 
the  treaty  of  peace,  have  thus  intended  to  renoimcc  the  exercise 
of  all  rights  in  consequence  of  tlic  events  and  changes  which  oc- 
curred during  the  war,  will  have  to  determine  their  respeclive 
obligations  as   regards  any   rights  of   iiidividual.s  to  demand  in- 


722  INTERNATIONAL    LAW    CODIFIED 

demnities  for  the  damage  they  may  have  sustained  in  the  course 
of  the  hostihties.  That  the  action  may  be  instituted  by  individuals 
under  the  law  before  the  ordinary  judicial  courts,  or  may  only  be 
brought  before  administrative  bodies  does  not  matter. 

In  the  absence  of  an  express  provision  on  the  subject,  the  prin- 
ciples of  the  "common"  law  of  nations  concerning  the  respective 
obligations  of  governments  in  case  of  succession  between  states 
shall,  by  analogy,  apply. 

WAR   DAMAGES 

1980.  The  belligerents  concluding  a  treaty  of  peace  are  bound 
to  determine  without  ambiguity  who  shall  be  responsible  for  the 
indemnities  due  to  individuals  who  have  suffered  damage  during 
the  war.  It  is,  indeed,  equitable  to  indemnify  these  individuals  as 
far  as  possible,  even  when  in  strict  law  they  have  no  legal  remedy. 

1981.  Any  property  damage  suffered  by  individuals  during  war, 
when  it  is  established  that  it  is  actually  a  result  of  military  opera- 
tions, gives  rise  to  the  right  of  obtaining  compensation  for  the 
injury  sustained,  either  through  judicial  or  administrative  chan- 
nels. 

This  rule  is  based  on  the  principle  that  war  is  a  relation  between  State  and 
State  and  that  the  ensemble  of  the  acts  accomplished  in  the  course  of  hos- 
tilities must  be  considered  as  having  had  the  purpose  of  protecting  the  rights 
and  interests  of  the  community.  Therefore,  citizens  must  be  held  responsible 
for  all  the  consequences  of  war  uli  universitas,  and  as  such  are  bound  to  bear 
all  the  consequences  of  it;  but  they  cannot  be  considered  as  bound  to  such 
obligation  uti  singuli.  Consequently,  those  who  have  suffered  a  property 
damage  owing  to  acts  of  warfare  should  not  be  bound  to  bear  it  individually, 
as  if  it  were  a  damage  arising  from  a  case  of  force  majeure  or  from  an  unex- 
pected event.  On  the  contrary,  the  damage  must  be  charged  to  the  com- 
munity, because  the  object  of  war  is  always  the  respect  of  the  rights  of  the 
community  which  are  defended  by  force  of  arms  against  a  foreign  state  seek- 
ing to  violate  them.  It  is,  therefore,  in  accordance  with  natural  principles  of 
justice  and  equity  always  to  admit  the  right  of  action  of  an  injured  individual, 
so  that  the  damages  individually  suffered  by  him  through  acts  of  warfare  may 
be  distributed  equally  among  all  the  members  of  the  community.  Such  dam- 
ages must,  indeed,  be  borne  by  the  citizens  uli  universitas  and  not  by  the  in- 
dividuals who  have  sustained  them  uti  singuli. 

But,  in  order  to  obtain  reparation  for  the  damage  will  it  always  be  possible 
to  appeal  through  judicial  or  administrative  channels?  This  is,  in  our  opinion, 
the  only  really  disputable  question  for  the  solution  of  which  it  will  be  neces- 
sary to  refer  to  the  following  rules. 

1982.  Individuals  may  resort  to  judicial  remedies  in  order  to 


THE    END    OF    WAR  723 

obtain  reparation  for  the  damage  caused  during  the  war,  when- 
ever thej'  have  been  deprived  of  their  propert.y  under  circumstances 
not  involving  the  immediate  urgent  necessities  of  war,  although 
motivated  by  the  preventive  measures  and  needs  of  defense  of  the 
State. 

The  right  and  legal  remedy  of  the  injured  party  in  such  case 
for  the  reparation  of  the  injury  sustained  must  be  governed  by  the 
principles  applicable  to  damages  suffered  by  individuals  on  the 
ground  of  public  utility  (eminent  domain)  and  must  be  exercised 
in  conformity  with  these  principles. 

This  rule  is  applicable  in  any  case  of  expropriation  or  damage  suffered  by 
individuals  during  war  or  because  of  it,  which  is  not  the  consequence  of  actual 
belligerent  operations;  that  is,  of  the  struggle  between  adverse  military  forces 
at  the  time  hostile  action  is  carried  on  through  attack  and  defense,  but  which 
is  brought  about  by  the  exigencies  of  war  and  the  preventive  requirements  of 
defense.  Such,  for  instance,  would  be  the  furnishing  of  foodstuffs  and  articles 
required  by  the  militarj'  commanders  for  the  supply  of  the  army  and  navy, 
the  expropriation  of  means  of  transportation  or  of  ships  for  the  needs  of  war, 
or  the  deterioration  or  expropriation  of  property  owing  to  the  preventive  re- 
quirements of  defense.  There  is  no  doubt,  in  our  opinion,  that  the  injured  or 
expropriated  party  who  suffers  damage  for  the  advantage  of  the  belligerents 
must  be  compensated  therefor.  He  must,  therefore,  be  entitled  to  bring  an 
action  against  the  State,  which  is  bound  to  compensate  him  for  the  damage 
under  the  terms  of  the  treaty  of  peace  or  in  conformity  with  the  general  prin- 
ciples of  law. 

1983.  The  destruction  or  injury  of  the  property  of  individuals 
during  war,  in  execution  of  a  plan  of  attack  or  defense,  when  car- 
ried out  in  a  place  where  at  the  time  no  battle  was  in  progress 
(that  is,  at  a  time  when  no  military  action  was  taking  place), 
and  undertaken  as  a  preventive  measure  of  defense,  cannot  be 
considered  as  an  act  of  war  accomplished  as  an  unavoidable  neces- 
sity or  as  force  majeure.  They  must  be  regarded  as  events  brought 
about  by  the  necessities  of  the  defense  and  in  the  public  interest 
of  the  belligerent,  and  consequently  the  injured  party  cannot  be 
denied  the  right  to  be  compensated  for  the  damage  suffered, 
through  recourse  to  a  legal  action  against  the  State  rcsiwnsiblc 
for  the  destruction  or  injury  either  under  the  general  principles 
of  law,  or  under  the  provisions  of  the  treaty  of  peace. 

1984.  Any  damage  suffered  by  individuals  during  l)attle  and 
arising  from  the  actual  military  ofK'rations  of  attack  and  defense 
cannot  be  considered  as  a  war  damage  giving  a  right  to  reparation 
or  compensation. 


724  INTERNATIONAL   LAW   CODIFIED 

Anything  that  a  belligerent  deems  it  urgent  to  do  or  undertake 
in  the  places  where  be  meets  the  enemy,  and  where  the  struggle  is 
actually  going  on,  must  be  considered  as  an  "act  of  war"  and  the 
damage  arising  therefrom  to  individuals  must  be  deemed  the  result 
of  unavoidable  necessity  or  force  majeure. 

The  injured  party  may  only  be  allowed,  with  a  view  to  being 
indemnified,  an  administrative  action  based  on  the  principles  of 
equity. 

The  distinction  made  in  the  rules  proposed  may  serve  not  only  to  deter- 
mine the  nature  and  character  of  the  right  acquired  by  individuals  for  obtain- 
ing the  reparation  of  their  damage,  but  to  estabhsh  which  of  the  belligerents 
is  bound  to  make  such  reparation,  when  no  special  provisions  on  the  subject 
have  been  incorporated  in  the  treaty  of  peace. 

In  our  opinion,  an  act  of  war  has  the  character  of  an  act  of  necessity  and 
of  force  majeure.  But  not  everything  that  may  be  brought  about  by  the 
necessities  of  war  can  have  the  character  of  an  act  of  necessity  and  of  force 
majeure.  When,  in  effect,  the  damage  was  inflicted,  not  in  the  course  of  battle 
but  at  some  other  time  for  the  purposes  of  military  defense,  it  cannot  be 
deemed  an  unavoidable  consequence  oi  force  majeure  and  of  an  act  of  war. 

It  is  undeniable  that  in  such  case  the  injuries  to  property  are  the  conse- 
quence of  public  necessities,  and  that  the  right  cannot  be  denied  to  the  sov- 
ereign, who  must  ensure  the  defense  of  the  State,  and  to  the  belligerent,  who 
must  see  to  the  success  of  the  war,  of  authorizing  the  said  injuries  with  the 
fullest  authority.  It  must  be  borne  in  mind,  however,  that  while  that  which 
is  done  on  account  of  public  necessities  and  interest  always  bears  the  character 
of  a  legitimate  act  and  consequently  must  take  precedence  over  private  in- 
terests, yet  the  sovereign  who,  in  the  interest  of  the  nation,  has  ordered  meas- 
ures prejudicial  to  private  property  must  indemnify  the  owners  so  injured. 
Accordingly,  the  reparation  of  the  damage  must  be  governed  by  the  rules  ap- 
plicable in  case  of  expropriation  on  the  ground  of  public  utility  rather  than 
by  those  applicable  to  damage  caused  by  acts  of  war. 

See  the  notes  and  references  on  this  topic  in  the  last  chapter  of  our  Tratlalo 
di  Diritlo  pubblico  inlernazionale,  v.  3,  §  1842,  and  our  note  under  the  judg- 
ment of  the  Court  of  Appeal  of  Lucca  of  March  8,  1880,  in  Journal  du  droit 
international  prive,  1883,  p.  78. 

(The  rules  above  mentioned  follow  closely  the  principles  laid  down  by  the 
French^  Conseil  d'Etat.  On  the  subject  of  war  damages  from  the  point  of 
view  of  municipal  law  and  international  law,  see  Borchard,  The  diplomatic 
protection  of  citizens  abroad,  Pt.  I,  ch.  VI,  pp.  246-280. — Transl.j 

IMMEDIATE   EFFECT   OF   PEACE 

1985.  A  treaty  of  peace  duly  concluded  and  legally  ratified  shall 
have  the  general  and  immediate  effect  of  ending  ipso  jure  ipsoque 
facto  the  application  of  the  laws  of  war,  with  all  the  effects  aris- 
ing therefrom  while  it  is  in  force,  and  to  make  the  international 
law  of  peace  once  more  exclusively  applicable. 


CONCLUSION 
OF  THE  SECOND  AND  THIRD  ITALIAN  EDITIONS 

The  rules  that  we  have  formulated  as  a  code  are  not,  to  be  sure, 
those  at  present  governing  all  the  international  relations  of  civil- 
ized peoples;  nor  can  it  be  foreseen  when  governments  will  be 
able  to  agree  upon  proclaiming  a  body  of  rules  constituting  their 
"common"  law,  and  thus  give  a  legal  organization  to  the  de  facto 
society  existing  among  them.  In  proposing  these  rules,  we  have 
not  thought  of  claiming  that  international  law  may  at  once  be 
codified,  and  of  solving  by  codification  the  very  delicate  problem 
of  endowing  with  a  legal  basis  the  society  of  states,  and  much  less 
have  we  entertained  the  foolhardy  pretension  of  legislating.  Our 
sole  purpose  has  been  to  demonstrate  that  the  legal  organization 
of  the  society  of  states  could  be  secured  b}^  establishing  between 
them  a  "common"  law  to  govern  all  the  relations  arising  out  of 
their  association,  and  that  it  would  be  possible  to  find  the  means 
of  assuring  respect  for  that  law  and  to  punish  violations  thereof. 
We  have  endeavored  to  indicate  a  course  to  be  followed,  with 
full  confidence  that  others  will  be  able  to  improve  upon  our  work, 
filling  out  the  gaps,  and  laying  down  more  satisfactory  rules. 

The  codification  of  international  law  cannot  be  the  work  of  one 
person  or  of  a  small  number  of  persons.  It  will  be  the  final  our- 
come  of  the  laborious  efforts  of  a  great  many  scientists  and  the 
latest  expression  of  the  legal  convictions  which,  with  the  progress 
of  civilization,  will  gradually  be  formed  in  the  conscience  of 
civilized  peoples  and  will  undoubtedly  modify  the  function  of 
diplomacy  and  of  the  most  liberal  governments. 

The  ultimate  result  will  only  be  reached  in  a  more  or  less  remoti^ 
future.  Difficulties  will  be  the  more  easy  to  overcome  as  the 
process  will  be  gradual,  beginning  with  the  codification  of  those 
parts  of  international  law  ('(nuMM-ning  which  connnon  legal  con- 
victions hav(!  already  been  formed  and  which  refer  to  matters 
respecting  which  the  social  conditions  in  the  different  countries  arc 

726 


726  INTERNATIONAL    LAW    CODIFIED 

most  uniform.  In  the  meantime,  every  one  should,  according  to 
his  own  forces,  bj^  writing,  teaching,  discussion  and  any  other 
useful  means,  contribute  to  the  progressive  formation  of  uniform 
legal  convictions  concerning  the  fundamental  principles  which 
must  prevail  in  the  harmonious  organization  of  the  society  of 
civilized  states,  so  as  to  evolve  and  elaborate  little  by  little  a 
system  corresponding  to  the  actual  present  needs  of  the  different 
states. 

We  have  endeavored,  as  a  willing  contributor,  to  bring  our 
grain  of  sand  to  the  construction  of  this  great  edifice,  and  we  have 
deemed  it  expedient  to  set  forth  the  result  of  our  studies  on  the 
different  branches  of  international  law  by  means  of  rules  grouped 
in  the  form  of  a  code.  Our  sole  aim,  as  we  stated  in  our  in- 
troduction,^ has  been  to  condense  our  scientific  views,  expressing 
them  as  distinct  propositions  arranged  in  a  systematic  order,  so  as 
to  set  them  out,  as  far  as  possible,  with  the  greatest  clearness  and 
precision.  If  we  have  not  succeeded  in  our  task,  we  have  at  least 
made  all  possible  efforts  in  that  direction. 

In  order  to  give  the  international  society  an  organization  con- 
forming to  the  needs  of  modern  times  and  to  proclaim  a  body  of 
rules  having  the  authority  of  law  for  all  states,  the  initiative  of  the 
most  liberal  governments  will  be  necessary,  and  there  is  no  doubt 
in  our  mind  that  it  will  manifest  itself. 

THE  PRIMITIVE  LEGAL  SOCIETY  WAS  THE  FAMILY;  THE  LEGAL 
CONFEDERATION  OF  CIVILIZED  PEOPLES  WILL  BE  THE  LAST  AND 
HIGHEST  MANIFESTATION  OF  LAW- 

CONCLUSION  OF  THE  FOURTH  EDITION 

It  is  some  few  years  since  we  published  in  Italy  the  third  edition 
of  the  present  work.  It  was  printed  in  1900  and,  as  stated  in  our 
preface,  was  the  exact  reproduction  of  our  second  edition  which  was 
issued  in  1898,  since  the  printing  of  the  codified  rules  was  made  with 
the  plates  of  the  second  stereotyped  edition.  No  one  could  foresee 
that  diplomacy  would  bring  about  a  Conference  for  the  purpose  of 
providing  for  the  legal  organization  of  the  international  society 
through  the  codification  of  conventional  rules  intended  to  insure 
peace.     Yet  this  is  what  happened  on  the  initiative  of  the  Czar, 

'  See  our  Introduction,  §  25. 


CONCLUSION  727 

who,  in  1898,  proposed  the  mooting  of  the  First  Peace  Conference, 
which  began  the  work  of  codification  by  formulating  the  conven- 
tional rules  established  in  common  agreement  in  the  final  Act  of 
The  Hague  of  July  29,  1899. 

This  first  Conference  was  the  most  important  event  of  our  time. 
It  established  the  important  precedent  of  the  meeting  of  states  in  a 
Congress,  without  distinction  as  to  greater  and  lesser  Powers, 
for  the  purpose  of  codifying  rules  with  a  view  to  the  pacific  settle- 
ment of  international  disputes  by  arbitration;  of  introducing  into 
war  on  land  and  on  sea  somewhat  greater  moderation  and  human- 
ity; of  proclaiming  the  principles  of  right  and  justice  in  certain 
matters  of  general  interest;  and  of  reducing  as  much  as  possible  the 
excessive  expenditures  for  armaments. 

The  states  there  assembled,  which  were  signatories  of  the  Final 
Act,  were  only  27  in  number.  It  cannot  be  said,  to  be  sure,  that 
the  conventions  they  concluded  fulfilled  the  great  hopes  to  which 
the  convocation  of  the  Conference  had  given  rise.  It  even  ap- 
peared as  if  that  attempt  was  somewhat  derisive,  since  it  was  fol- 
lowed within  a  short  time  by  the  Boer  war  (October  10,  1899)  and 
by  the  China  war  (1900). 

The  program,  however,  remained  as  it  had  been  announced, 
that  of  attempting  to  codify  the  rules  designated  to  assure  the 
peace  of  mankind.  This  program  was  adopted  by  all  the  peace 
societies,  which  deplored  the  pre-eminence  of  force  in  the  inter- 
national society,  and  especially  by  the  Interparliamentary  Union, 
which  has  labored  and  will  continue  to  labor  for  the  cause  of  hu- 
manity and  civilization.  Meeting  at  St.  Louis  on  the  occasion  of 
the  Universal  Exposition,  that  Union  stimulated  anew  the  move- 
ment for  the  program  which  had  brought  about  the  First  Hague 
Conference  and  expressed  to  the  President  of  the  United  States 
the  wish  to  bring  about  the  meeting  of  a  second  Conference  for 
developing  and  completing  the  work  of  the  first.  This  wish,  com- 
municated to  President  Roosevelt  on  S(^ptembcr  24,  1904,  resulted 
in  the  circular  of  the  Department  of  State;  of  Washington  of  the 
21st  of  October  of  that  year  for  the  meeting  of  a  new  Conference. 
The  proposal  was  accepted  in  principle  as  a  consequence  of  ne- 
gotiations between  the  states  signatory  of  the  general  act  of  1899, 
and  the  Second  Hague  Conference  assembled  on  June  15,  1907. 
Public  opinion,  as  a  result  of  the  disappointment  of  the  first  Con- 


728  INTERNATIONAL    LAW    CODIFIED 

ference,  was  very  skeptical  of  the  work  of  the  second.  This 
conference,  however,  was  convened  and  the  number  of  states 
which  took  part  in  it  increased  materially,  reaching  a  total  of  44, 

Those  who  have  a  one-sided  view  of  things  insist  in  claiming 
that  the  second  Conference  has  likewise  fallen  short  of  its  expecta- 
tions; that  the  conventions  concluded  have  merely  resulted  in 
regulating  war  rather  than  in  strengthening  peace;  that  naval 
and  military  expenditures,  instead  of  decreasing,  are  everywhere 
increasing;  that  the  Russo-Japanese  war  and  the  danger  of  a  war 
more  terrible,  averted  by  the  Algeciras  Conference,  constitute 
the  most  convincing  proof  that  the  efforts  of  the  Peace  Conference 
have  been  of  no  avail.  As  for  us,  leaving  aside  all  subtle  consider- 
ation of  the  question,  but  viewing  it  on  its  merits,  we  find  that  the 
result  of  the  Conference  corroborates  the  opinion  we  had  expressed 
in  the  month  of  October,  1898,^  on  the  occasion  of  the  note  of  the 
Czar  of  August  12/24  of  that  year,  that  the  meeting  of  the  Hague 
Conference  is  the  greatest  event  of  our  time  and  that  the  results 
arrived  at,  while  incomplete,  cannot  be  considered  as  negligible 
or  as  falling  short  of  expectations,  since  the  program,  which  re- 
mains the  same,  has  as  its  object  the  codification,  by  common 
agreement,  of  conventional  rules  for  assuring  the  legal  organiza- 
tion of  international  society. 

Prior  to  these  two  Conferences,  states  had  adopted  universal 
rules  of  conventional  law  for  the  organization  of  certain  services 
of  an  industrial  or  economic  character,  such  as  the  postal,  tele- 
graph, and  international  railroad  services.  They  had  likewise 
concluded  certain  treaties  of  a  political  character  to  regulate  their 
reciprocal  interests,  or  to  provide  for  a  new  order  of  things  resulting 
from  war,  or  to  settle  certain  differences  of  interests  so  as  to  pre- 
vent hostilities.  Nevertheless,  these  treaties  are  but  empirical  com- 
pacts based  upon  reciprocal  convenience,  and  have  been  concluded 
only  between  states  which  desired  to  protect  their  present  interests. 
But  the  world  has  seen  a  congress  of  44  states  assembled  to  lay 
down  in  common  agreement  universal  rules  of  conventional  law 
of  a  political  character  governing  their  reciprocal  obligations  and 
rights  and  to  establish,  in  accord,  judicial  means  designed  to  insure 
respect  for  and  compliance  with  the  said  rules. 

^See  Opinion  de  M.  Pasquale  Fiore:  La  question  de  desarmement  et  la  note 
du  Tsar  Nicolas  II,  in  Revue  generate  de  droit  international  public,  v.  5,  1898, 
p.  732. 


CONCLUSION  729 

Matters  must  not  he  viewed  with  distrust,  nor  must  one  con- 
sider whetiier  the  results  are  entiiely  complete,  or  entirely  satis- 
factory. It  is  the  constitution  of  the  Hague  assembly,  its  char- 
acteristic aspect  and  its  mission  which,  in  our  opinion,  constitute 
the  most  important,  striking,  and  significant  event.  If  its  results 
are  at  present  incomplete,  they  will,  nevertheless,  by  reason  of  the 
progress  of  civilization  and  under  the  influence  of  public  opinion, 
which  will  always  induce  governments  to  modify  the  direction  of 
politics  to  conform  with  the  joint  interests  of  nations,  become  in  a 
more  or  less  remote  future  complete  and  satisfactory.  A  fact  which 
cannot  be  denied  is  that  the  assembly  of  The  Hague  represents 
the  natural  legal  organ  of  the  international  society  for  proclaiming 
the  law  of  the  Magna  civitas  as  a  binding  legal  force  for  all  the  states 
represented  therein,  with  the  obvious  character  of  equality  and 
mutuality,  by  placing  the  rules  codified  in  common  accord  under 
the  collective  legal  protection  of  the  states  thus  associated.  It 
follows  therefore  clearly,  that,  its  mission  being  better  determined, 
that  assembly  will  succeed  in  a  more  or  less  proximate  future,  in 
solving  the  problem  of  the  legal  organization  of  the  international 
society  through  the  gradual  codification  of  the  rules  designed  to 
govern  that  society,  and  the  organization  of  authorities  most 
likely  to  guarantee  the  respect  of  these  rules. 

Is  not  the  periodicity  of  the  Peace  Conferences,  voted  unani- 
mously by  the  44  states,  a  fact  of  a  capital  importance? 

For  the  Conference  of  1907  voted  the  meeting  of  a  Third  Peace 
Conference  within  a  period  of  time  similar  to  that  which  elapsed 
between  the  first  and  the  second,  and  in  addition  the  creation  of  a 
committee  to  prepare  in  advance  a  program  and  determine  further  . 
matters  susceptible  of  international  regulation. 

If  we  have  not  as  yet  attained  a  satisfactory  result,  we  are,  never- 
theless, on  the  high  road  to  it. 

As  for  us,  we  declare  that  we  never  lost  our  faith  in  the  triumph 
of  ideas.  Ideas,  not  facts,  dominate  the  world.  At  present  our 
faith  is  strengthened  by  the  fact  that  the  ideas  which  had  inspircnl 
our  doctrine  are  gradually  being  r(>alized. 

We  l)eg  leave  to  reproduce  what  we  wrote  in  1879: 

"If  the  condition  of  the  working  class  is  not  to  grow  worse,  it  is 
necessary  to  moderate  the  increasing  preponderance  of  militarism. 

"Now,  it  is  apparent  to  our  mind  that  this  will  be  arrived  at  only 


730  INTERNATIONAL    LAW    CODIFIED 

when  the  industrial  and  manufacturing  bourgeoisie  and  the  other 
classes,  which  need  peace  to  prosper,  shall  acquire  a  greater  power 
and  influence  in  the  government  of  public  affairs. 

"We  have  seen  in  our  time  the  most  obstinate  sovereigns,  who 
styled  themselves  kings  by  divine  right,  yielding  before  the  ir- 
resistible power  of  ideas  and  accepting  the  crown  from  the  hands 
of  the  people;  and  so  will  follow  obstinate  diplomacy."  ^ 

In  1887,  speaking  of  the  difficulties  of  solving  the  problem  of  the 
legal  organization  of  the  Magna  dvitas,  we  wrote:  "As  to  the  prac- 
tical solution  of  the  problem,  our  faith  in  the  future  increases  all 
the  more  as  we  see  the  excess  of  militarism  growing  and  the  social 
question  becoming  more  acute.  Both  that  question  and  those 
excesses,  while  having  distinct  objects,  will  bring  about  the  same 

result:  that  of  hastening  the  solution  of  the  international  prob- 
lem." 2 

To  conclude,  we  witness  the  triumph  of  progressive  codification. 
Diplomacy  has  recognized  the  necessity  of  bringing  the  question 
upon  the  tapis.  One  thing  leads  to  another:  we  have  made  a  good 
beginning  and  we  are  fairly  convinced  that  step  by  step  the  inter- 
national society  will  be  given  its  legal  organization  and  a  structure 
adapted  to  the  needs  of  civilization. 

THE  PRIMITIVE  JURIDICAL  SOCIETY  WAS  THE  FAMILY,'  THE  FINAL 
SOCIETY  WILL  BE  THE  JURIDICAL  UNION  OF  CIVILIZED  PEOPLES. 

*  Fiore,  Trattato  di  diritlo  internazionale  pubblico.,  2d  ed.,  1879  (Turin, 
Unione  Tipografico-Edi trice),  §  133,  p.  108. 

2  Id.,  idem,  3d  ed.  (Turin,  id.,  1887),  §  133,  p.  93.  See  also:  Fiore,  Un  appel 
d  la  presse  et  d  la  diplomatie.  L'empereur  d'Allemagne.  La  question  europeenne. 
Une  solution.    Paris,  Chevalier-Marescq,  1890. 


INDEX 

[  References  are  to  pages  J 

A 

Accession  (as  method  of  acquiring  territory) 427 

Acquisitive  prescription 429 

Alabama  Claims  Arbitration 18 

Aliens: 

Admission 42 

Civil  rights 43 

Freedom  of  expatriation 43 

Rights  of  property 42 

American  Institute  of  International  Law 69 

Purposes 69 

Opinions  concernmg 70 

Amnesty 719 

Annexation 134,  422 

Effects .- 139 

Arbitration 18,  61 

Action  in  claim  of  annulment 517 

Administration  of  arbitral  justice 499 

Awards,  execution  of 63,  515 

Compulsory 62 

"Compromis" 500 

Constitution  of  tribunal 501 

Efficacy 494 

Grounds  of  nullity  of  award 516 

Obligator}^  character 495 

Permanent  court 502 

Rules 512 

Suspension  of  execution  of  award 518 

Armaments,  limitation  of 20 

Armistice 639 

Asylum 213 

Autonomy 42,  152 

Executive 164 

Judicial 157 

Legislative 153 

Limitations 166 

Relations  with  foreigners 155 

Rights  as  to 42 

731 


732  INDEX 

[  References  are  to  pages  ] 

B 

Barbarous  tribes 34,  45 

Belligerents: 

Contributions  of  war 592 

Exercise  of  right  of  war 548 

Hospital  ships  according  to  Hague  Convention  of  1907 615 

In  naval  war 594 

Merchant  ships  converted  into  war  vessels 595 

Passengers  and  crews  of  enemy  merchant  vessels 613 

Privateers 597 

Requisitions 591 

Rights  over  enemy  property 590 

Rights  over  property  of  state  and  private  persons 590 

Rights  as  against  neutrals 643 

Rights  with  respect  to  enemy  persons 613 

Those  having  no  right  to  be  called  belligerents 552 

War  booty 593 

Who  is  a  belligerent  in  civil  war 550 

Blockade: 

Application  of  rules  to  enemy  merchant  vessels 672 

Capture  of  ships  for  violation  of 701 

Commercial 526 

Diplomatic  notification 669 

Duties  and  rights  of  neutrals 671 

Penalties 672 

Places  subjected  thereto 667 

Special  notification 670 

Temporary  suspension  of  the  investment 669 

When  legally  established 668 

Bombardment: 

In  maritime  war 604 

In  war  on  land 566 

Boundary  lines 418 

Brussels  Convention  of  1874 82 

C 

Canals,  Freedom  of  navigation 401 

Capitulations: 

Belligerent 634 

With  regard  to  exterritoriality 209,  362 

Capture,  in  naval  war: 

Captured  ship  taken  into  port  of  belligerent  captor 692 

Competence  of  international  court 697 

Competent  tribunal  in  case  of  capture  and  prize 695 


INDEX  733 
[  References  are  to  pages  ] 

Captured,  in  naval  war — Continued. 

Constitution  of  prize  court 695 

For  violation  of  blockade 701 

Formalities  of  capture 690 

Functions  of  the  judicial  authorities 693 

Judgment  as  to  capture 701,  706 

Judgment  in  case  of  destruction  of  captured  ships 703 

National  ships  retaken 705 

Of  ship  and  cargo 689 

On  account  of  contraband 700 

Persons  on  board 692 

Preservation  of  things  captured 691 

Prize  taken  to  a  neutral  port 694 

Proceedings  concerning  rightfulness  of  |)rize 703 

Proceedings  relative  to  lawfulness  and  regularity  of  capture 698 

Special  prize  court  constituted  by  belligerent 696 

When  and  bj'  whom  made 689 

When  can  cargo  be  confiscated 704 

When  can  ship  be  confiscated 704 

When  legitimate 699 

When  may  captured  ship  be  destroyed 691 

When  must  right  of  prize  be  denied 705 

When  unlawful 699 

Catholic  Church:  See  Church. 

Cession  of  territory 137,  422 

Administration  of  justice 143 

Effects 139 

Church 33,  313 

As  a  person  of  international  law 36,  110 

Diplomatic  relations 48,  316 

International  rights  of 46,  113,  312 

Protection  of  rights 320 

Relations  with  state 46,  319 

Right  of  representation 316 

Church  and  state 46,  319 

Citizens: 

Consular  j)rotecti()ii  of 253 

Diplomatic  protection  al^road 259 

Citizenship: 

Change  of 299 

Duties  of  a  citizen 309 

Necessity  for  "common "  law 301 

Proof  of 307 

Protection  of  citizens  abroad 259 

Rational  rules  on  attributes  of 302 

Relation  to  domicil , 306 


734  INDEX 

I  References  are  to  pages  ] 

Citizenship — Continued. 

Right  of 298 

Rights  of  a  citizen 308 

Unlawful  change  of 300 

Civil  judgment: 

Extraterritorial  effect 158 

Civil  war 533 

Coercive  measures  in  time  of  peace 519 

Commercial  blockade 526 

Intervention  in  case  of  legitimate  interference 525 

Lawful  coercive  means 520 

Reprisals 522 

Retorsion 520 

When  recourse  to,  is  justifiable 519 

Collectivities,  rights  of 41,  44 

Collisions: 

Distribution  of  damages 412 

Responsibility  for 412 

Rules  concerning  the  competent  court 413 

Colonies,  status 125,  417 

Colonization 46 

"Comitas  gentium" 93 

Commercial  blockade 526 

Commissions  rogatory 277 

Execution 278 

"Compromis" 500 

Concordat 52,  379 

Conference,  The: 

Constitution 60,  479 

Definition 478 

Duties 62,  480 

Procedure 481 

Sanction  of  its  decisions 483 

Conflict  of  laws 43 

"Congress,  The: 

As  principal  organ  of  international  society 54,  467 

Constitution 55,  470 

Convocation  and  duration 473 

Functions 58,  468 

Procedure 474 

Sanction  of  its  resolutions 475 

Conquest  of  territory 430 

Constitutional  changes: 

Recognition 148 

Consular  agents 258 

Consular  conventions 361 


INDEX  735 

(  References  are  to  pages  ] 

Consulates : 

Establishment  of 250 

Exterritoriality 217 

Consuls: 

Consular  agents 258 

Duties  in  uncivilized  countries 255 

Duties  with  regard  to  merchant  marine 254 

Establishment  of  consulates 250 

General  characteristics 249 

Jurisdiction 205 

Powers  and  duties 251 

Prerogatives  under  "  common  "  law 256 

Protection  of  citizens 253 

When  is  character  established 252 

Contraband  of  war: 

Articles  considered  contraband 673 

Carriage  of  diplomatic  agents 679 

Capture  of  ships  on  account  of  carriage  of 700 

Conventional 675 

Destination  of  goods  and  of  ship 677 

Right  of  belligerent  to  prohibit  commerce  in  certain  objects.  . .  .   676 

Foreign  trade  assimilated  to 678 

Penalties  according  to  international  law 681 

Penalties  applicable  to  transport 680 

Right  of  belligerent  to  extend  conception 674 

Transport  of  coal 679 

Transport  of  dispatches 678 

Transport  of  soldiers  and  officers 678 

Conventions:    See  Treaties. 

Conventions  governing  war: 

Armistice 639 

Capitulation 634 

Preliminaries  of  peace 642 

Safe-conduct  licenses 637 

Safeguard 638 

Suspension  of  arms 633 

Truce 642 

Who  may  conclude 632 

Copyright 454 

Court  of  arbitration 60 

Organization 61 

Courts,  Jurisdiction  in  criminal  matters 188 

Criminal  law: 

Extraterritorial  authority 189 

Criminal  procedure  and  jurisdiction: 

Extern  toriaUty 214 


736  INDEX 

[  References  are  to  pages  ] 

Custom 85 

Customs  (revenue) 439 


D 

Diplomatic  agents: 

Acceptance  of  those  appointed 235 

As  representatives  of  states 233 

Cessation  of  dpilomatic  mission 247 

Duties 244 

Exterritoriality 209 

Immunities 240 

Observance  of  ceremonial 246 

Persons  attached  to  legation 242 

Powers 236 

Prerogatives 239 

Responsibility 237 

Rights  and  privileges 237 

Rights  with  respect  to  third  powers 243 

Suspension  of  powers 247 

Usurpation  of  diplomatic  functions 248 

Who  possesses  right  to  send 234 

Diplomatic  measures  to  avoid  hostilities 64 

Diplomatic  relations  in  time  of  war 537 

Diplomatic  usage: 

Rules 225 

Domicil 306 

Dominium: 

Limitations 183 


E 

Economists 11 

European  concert 44 

Exterritoriality 208 

Criminal  procedure  and  jurisdiction 214 

How  privilege  is  lost 216 

Persons  enjoying  privilege  of 208 

Diplomatic  representatives 209 

Persons  subject  to  system  of  capitulations 209 

Pope 209 

Sovereigns 209 

Places  enjoying  privilege  of 211 

Consulates 217 

Holy  See 218 


INDEX  737 
[  References  are  to  pages  ] 

Exterritoriality — Continued. 

Legations 212 

Quarters  of  foreign  army 220 

Extradition  (treaties) 375 

F 

Fiore,  Biography vi 

Bibliography xi 

Fiore's  International  Law  Codified: 

Purposes 78 

Sources  of  legal  rules 81 

Fishing  on  high  seas  and  in  non-territorial  waters 404 

Foreign  army: 

Exterritoriality 220 

Foreign  judgment 160 

Foreign  penal  judgment 163 

Foreign  sovereigns,  Jurisdiction  over 199 

Foreign  states,  Jurisdiction  over 201 

French  Revolution 12 

G 

Geneva  Convention  of  1864 23 

Geneva  Tribunal  of  Arbitration 18 

Gentilis,  Albericus 10 

Good  oflBces  as  means  of  settling  international  disputes 485 

Grotius 10 

H 

Hague  Conference  of  1899 21 

Hague  Conference  of  1907 24 

Hague  Conventions 24 

Hague  Convention  V,  1907,  war  on  land 658 

Convention  XIII,  naval  warfare 662 

Hague  Convention  XII,  1907 — International  Prize  Court 707 

Holy  See,  Exterritoriality 218 

See  also  Church. 

Hospital  ships  and  Hague  Convention  of  1907 615 

Humanity,  duties  of 289 

I 

Imperium 174 

Limitation 176 


738  INDEX 

[  References  are  to  pages  ] 

Imperium — Continued. 

Regarding  citizens 174 

Regarding  foreigners 176 

Rules 174 

Independence 170 

Institute  of  International  Law 71 

International  Commission  of  Inquiry 488 

International  disputes: 

Pacific  settlement  of 65 

Preventive  measures 64 

International  Law: 

As  codified  by  Fiore 80 

As  distinguished  from  interstate  law 73 

Codification 58 

Definition 35 

Enforcement 60,  101,  463 

Formulation 53,  463 

Fundamental  principles 90,  464 

History 1 

Object 35 

Sanction 14 

Science  of 29,  90,  103 

Sources  of  Fiore's  rules 81 

International  organization  of  States: 

History 2 

Internoscia's  Code  of  International  Law 74 

Interpretation 99 

Interstate  law 73 

Intervention : 

In  favor  of  Pope 267 

Not  justified  by  treaty 266 

Unlawfulness 265 

Intervention,  collective 44,  66 

Between  church  and  state 272 

General  principle 272 

When  justified 270 

When  required 268 

When  unjustifiable 271 

Islands: 

Jurisdiction 196 

J 

Jurisdiction 188 

As  right  of  sovereign 188 


INDEX  739 

[  References  are  to  pages  ] 

Jurisdiction — Continued. 
Criminal: 

Over  merchant  vessels 192 

Over  territorial  waters 191 

Over  war  vessels 194 

Relations  to  piracy 190 

Of  courts 188 

Over  foreign  consuls 205 

Over  foreign  sovereigns 199 

Over  foreign  states 201 

Over  islands 196 

Over  mail  steamers 198 

Over  merchant  vessels 196 

L 

Lakes: 

Freedom  of  navigation 405 

Law,  community  of,  among  nations 1 

Legal  entities 116 

Legations: 

Exterritoriality 212 

Performance  of  civil  acts 215 

Persons  attached  to 242 

Liberty 152 

Locke 11 

M 

Machiavelli 10 

Mail  steamers: 

Jurisdiction  over 198 

Man: 

As  a  person  of  international  law 36,  108 

Declaration  of  rights  of 30 

International  rights  of 32,  40 

Man:  International  rights  and  duties 291 

Citizenship 298-302,  306,  307 

Domicil  in  relation  to  citizenship 30(i 

Duties  of  man  as  a  citizen 309 

Freedom  of  navigation  and  commerce 297 

International  duties 310 

Inviolability  of  person 291 

Legal  sanctions  of  international  rights 311 

Naturalization 305 

Negroes 291 

Property 293 


740  INDEX 

[  References  are  to  pages  ] 

Man — Continued. 

Right  of  free  migration 295 

Rights  of  man  as  a  citizen 308 

Maritime  ceremonial 226 

Maritime  war: 

Care  of  shipwrecked  and  wounded 615 

Means  of  settling  differences  between  states  and  of  preventing  litigation . .  484 

Good  oflBces 485 

International  commission  of  inquiry 488 

Mediation 487 

Mediation  as  means  of  settling  differences  between  states 487 

Merchant  marine: 

Consular  protection  of 254 

Merchant  ships: 

As  private  property 458 

Converted  into  war  vessels 595 

Criminal  jurisdiction 192 

Engaged  in  warfare 600 

Mortgages  and  real  rights 460 

Proof  of  nationality 459 

Rights 460 

Rights  of  belligerents  over  enemy  merchant  passengers  and  crews. .  613 
Seizure  in  time  of  peace 525 

Merchant  ships  and  cargo,  Enemy 621 

Capture  according  to  present  customs 622 

Capture  in  relation  to  right  of  prize *.  *. 630 

Characteristics  of  right  of  capture 622 

InviolabiUty  of  personal  property 621 

Mail  steamers  and  correspondence 630 

National  ships  captured  by  enemy  and  retaken 625 

Object  of  capture 624 

Occupation  of  maritime  territory  and  its  effects 631 

Restrictions  upon  right  of  capture ■ 628 

Ships  and  property  exempt  from  capture 627 

When  a  merchant  vessel  may  be  regarded  as  enemy 624 

Who  may  exercise  right  of  capture  and  where 623 

Migration,  free 295 

MiHtary  occupation  in  time  of  war 569 

Minister  of  foreign  affairs: 

As  legal  representative  of  state 232 

Montesquieu 13 

Moral  precepts,  rules  based  on 94 

Most  favored  nation  clause 359 

Mutual  assistance  of  states: 

General  principles 273 

In  administration  of  criminal  justice 278 


INDEX  741 

[  References  are  to  pages  ] 

Mutual  assistance  of  states — Continued. 

In  case  of  maritime  disaster  or  shipwreck 274 

Judicial  assistance  to  individuals    281 

Rules  relating  to  salvage 275 

To  facilitate  administration  of  justice 277 

To  foreign  ships 273 

To  shipwrecked  sailors 276 


N 

Nation,  The: 

Definition 117 

International  rights 119 

International  status 117 

Nationality 33,  41,  45 

Naturalization 305 

Naturalized  persons: 

Right  of  protection 262 

Naval  war  (Convention  XIII)  Hague  Convention,  1907 662 

Navigable  rivers 394 

Compulsory  pilotage 397 

Legal  enforcement  of  regulations 398 

Navigation  taxes  and  dues 396 

Positive  law  relating  to  river  navigation 400 

Principles  concerning  regulation  of  river  navigation 396 

Rivers  flowing  through  territory  of  single  state 399 

Rules  for  navigation  of  international  rivers 395 

Navigation  and  commerce,  freedom  of 297 

Navigation: 

Collisions 412 

International  rules  of 408 

In  territorial  waters 411 

Revision  of  regulations 409 

Rules  for  direction  and  management  of  the  ship 411 

Rules  of  maritime  courses 410 

Negroes,  personal  rights 291 

Neutrality :  rights  and  duties  of 645 

Acts  consistent  with  neutrality 651 

Acts  of  hostility 651 

Belligerents  taking  refuge  in  neutral  ports  or  territory 652 

Concept  and  nature  of 645 

Duties  of  belligerents  toward  neutrals 655 

Duties  of  neutral  states 650 

Freedom  of  peaceful  commerce 649 

Independence  in  exercise  of  rights  of  sovereignty 648 


742  INDEX 

[  References  are  to  pages  ] 

Neutrality:  rights  and  duties  of — Continued. 

Inviolability  of  neutral  territory 648 

Prisoners  landed  and  prize  abandoned  in  neutral  ports 654 

Rights  and  duties  according  to  Hague  Convention  of  1907 657 

Rights  of  neutral  states 647 

States  entitled  to  be  considered  neutral 646 

New  states: 

Relations  with  other  states 132 

O 

Obligations,  international 325 

Different  forms 327 

General  and  fundamental  rules 325 

Occupation  of  territory 423 

Organization  of  society  of  states 1 

Contribution  of  international  law 29 

History  of  projects  for 2,  17 

Jurists,  economists  and  philosophers 10,  11 

Need  of  more  rational  form 14 

Present  condition 9 

P 

Papacy: 

As  an  international  person 39 

Rights  of  the 49 

Patents  for  inventions 457 

Peace: 715 

Treaty 377,  716 

People: 

Definition 117 

International  rights 118 

International  status 117 

Permanent  court  of  arbitration 502 

Personal  union ' 124 

Persons,  juristic 120 

Persons :  international  rights 105 

Rights  under  authority  of  international  law 117 

Philosophers 11 

Piracy: 

Powers  of  vessels  with  respect  to  pirate  ships 388 

Relation  to  criminal  jurisdiction 190 

Political  equiUbrium  of  states 288 

Pope,  The: 

Exterritoriality 209 


INDEX  743 

f  References  are  to  pages  ] 

Pope,  The — Continued. 

Freedom  of  government 313 

Inviolability 316 

Limitation  of  rights 314 

Right  of  autonomy  and  independence 313 

Positive  law 91 

Binding  force  of 96 

Common 92 

Particular 93 

Prisoners  of  war: 

Conventions  respecting  their  exchange  and  release 582 

Duties  of  belligerents  toward 579 

Hostagas 585 

On  conclusion  of  peace 719 

Parole 582 

Rights  respecting 581 

Wounded  and  sick 587,  615 

Privateers 597 

Prize  courts: 

Competent  tribunal 695 

Constitution  of 695 

Decisions  and  executory  force 706 

Hague  Convention  of  1907 707 

Procedure 697 

Special — constituted  by  belligerent 696 

Prizes: 

Proceedings  concerning  rightfulness  of 703 

Taken  to  neutral  port 694 

Property : 

Inviolabihty 293 

Property,  private 448 

Commercial  and  trade  names 455 

General  principles 448 

Inviolability 452 

Literary,  copyright 454 

Merchant  ship 459 

Patents  for  inventions 457 

Rules  concerning  legislative  jurisdiction  of  states 450 

Trade-marks 456 

Property,  public 415 

Boundary  lines 418 

Colonial  possessions 417 

Common  property 385 

Canals 401 

Control  on  high  seas  during  voyage 406 

Fiahing  on  high  acas  and  in  non-territorial  waters 404 


744  INDEX 

[  References  are  to  pages  ] 

Property,  public — Continued. 

Freedom  of  navigation 405 

Lakes 405 

Liberty  of  high  seas 385 

Nationality  of  ships 407 

Navigable  rivers 394 

Ship's  papers 407 

Straits 402 

Things  deemed  common 385 

General  principles 384,  415 

Islands 418 

Legal  possessions  of  every  state 416 

Territorial  waters 416 

Territory 416 

Property  of  State  and  taxation 436 

Customs  system 437 

Imposed  upon  a  state 439 

General  principles 436 

International  postal  service 446 

International  railroads 439 

International  telegraph  lines 443 

Peaceful  use  of  isthmuses 447 

Roads  and  highways  of  communication 447 

Submarine  cables 445 

Taxation 437 

Telephones 446 

Protection  of  citizens  abroad: 

As  right  of  citizen 259 

As  right  of  sovereignty 259 

Naturalized  persons 262 

Rational  limit 261 

When  legitimate . 260 

Protectorate 127 

Protectorate,  Colonial 431 

Public  opinion 59,  65,  86 


R 


f 


Ratification 95 

Rational  law 90 

Binding  force  of 94 

Recognition  of  the  state 145,  150 

Exercise  of  rights  by  unrecognized  state 149 

Form 149 

General  rules ' 145 

Nature 146 


INDEX  745 

[  References  are  to  pages  ] 

Recognition  of  the  state — Continued. 

Value 147 

When  necessary 145 

Reprisals 522 

Requisitions 591 

Responsibility  of  state,  international 282 

Arising  from  acts  of  private  persons 287 

Direct 283 

For  acts  of  officers 285 

Fundamental  principles 282 

Indirect 284 

Restoration 133 

Retorsion 520 

Revolution,  right  of 45 

Rivers,  navigable: 

See  Navigable  rivers: 
Rousseau : 

Project  of  perpetual  peace 56 

S 

Salvage 275 

Search :  See  visit  and  search. 

Secession: 

As  effecting  change  in  personality  of  state 132 

Seizure  of  ships:  See  Capture. 

Separation  (from  constituted  state) 131 

See  also  Secession: 

Servitudes 434 

Ship,  The: 

See  Merchant  ships: 

Shipwrecked  sailors 276 

Sick  and  wounded :  See  prisoners  of  war. 

Siege 564 

Signals : 

Fog  signals 410 

Of  ships 409 

Signal  lights 410 

Slave  trade: 

Principles  for  suppression 389 

Sovereign : 

Exterritoriality 209 

Right  of  representation 231 

Sovereignty: 

Over  gulfs  and  lakes 184 

Over  movables 187 


746  INDEX 

[  References  are  to  pages  ] 

Sovereignty — Continued . 

Over  ports  and  roadsteads 183 

Over  rivers 186 

Over  straits 185 

Over  territorial  waters 178 

Re-establishment  of  rights  at  end  of  war 720 

Spheres  of  influence  (hinterland) 432 

Spies 557 

State,  The:. 

As  a  person  of  international  law 36 

Autonomy 42 

Compound 122 

Identity 151 

In  relation  to  church 46 

International  rights 29,  40,  48 

Loss  of  personality 151 

Simple 122 

Transformations  of  personality 130 

Treaty  power 51 

Tributary 126 

Protectorate 127 

Vassal 125 

States,  as  persons 106 

International  duties 264 

International  rights 106 

Confederation  of 56 

Legal  equality 222 

Maritime  ceremony 226 

Political  equilibrium 228 

Precedence  in  rank 225 

Representation  of 231 

Diplomatic  agents 233,  248 

How  established 234 

Minister  of  foreign  affairs 232 

Sovereign  and  family 231 

To  whom  assigned 231 

Respect  of  moral  personality  and  honor 224 

Rules  of  diplomatic  usage 225 

Submarine  cables: 

In  maritime  war 609 

Taxation,  of  property  of  state:  See  property  of  state  and  taxation. 

T 

Territory: 

As  possession  of  state 415 

Methods  of  acquisition 422 


INDEX  747 

[  References  are  to  pages  ] 

Territory — Coidinued. 

Annexation 422 

By  accession 427 

By  acquisitive  prescription 428 

By  conquest 430 

By  occupation 423 

By  usucaption 428 

Cession 422 

Colonial  protectorate 431 

Community  of  indivisible  territory 434 

International  servitudes 434 

Spheres  of  influence  (hinterland) 432 

Territorial  waters 181 

As  possession  of  state 416 

Criminal  jurisdiction 191 

Trade-marks 456 

Treaties 51 

In  time  of  war 538 

Suspended  during  war 719 

Treaties,  abrogation  and  annulment 348 

Expiration 353 

General  principles 348 

Judicial  proceedings  for  abrogation 349 

Termination  and  renewal 352 

Treaties,  conditions  for  validity 328 

Capacity  to  conclude  a  treaty 329 

Consent  required  for  validitj^ 332 

Extrinsic  requirements  including  form 335 

Lawful  subject-matter 333 

Notifications 331 

Persons  competent  to  conclude 330 

Requirements  for  validity 329 

Treaties  in  general 328 

Treaties,  legal  form  and  execution 336 

Broad  or  restrictive  interpretation 345 

Disputes  over  execution  of 346 

Effects 336 

Effects  with  regard  to  third  parties 338 

Execution 339 

Guaranty  of  a  third  power 340 

Interpretation 341 

Inviolability 336 

Lawful  means  of  assuring  execution 340 

Obligations  arising  from  a  guaranty 341 

Rul(«  of  grarnriuiticjil  iiifcrprctation 342 

Rule$  of  logical  interijrctution 343 


748  INDEX 

I  References  are  to  pages  ] 

Treaties,  Special 355 

Capitulation 362 

Concerning  spheres  of  influence 366 

Consular  conventions 361 

Conventions  between  heads  of  church  and  state-concordats 379 

Conventions  of  war  and  treaties  of  peace 377 

Most  favored  nation  clause 359 

Of  cession 355 

Of  commerce 356,  360 

Interpretation 358 

Of  common  interest 373 

Of  confederation 369 

Of  customs  union 361 

Of  extradition 375^ 

Of  pacific  alliance 372 

Of  poUtical  alliance 370 

Of  protectorate 364 

Of  suzerainty  and  vassalage 367 

Tribes,  independent 34,  45 

International  rights 115 

Tribes,  uncivilized 117 

International  rights 120 

International  status 119 


U 

Union  of  several  states 133 

Usucaption 428 


V 

Vessels: 

See  Merchant  ships. 

Visit  and  search: 

Method  of  procedure 390,  686 

On  the  high  seas 387 

Within  territorial  waters 392 

Visit  and  search,  right  of: 

Concept  and  nature 684 

Convoyed  ships 685 

Search  and  examination 687 

Seizure  of  visited  ship 687 

Ships  exempt  from 685 

When  it  may  be  exercised 684 


INDEX  749 
[  References  are  to  pages  ] 

W 

War,  as  last  recourse  for  individual  protection 532 

Civil 533 

Declaration  of 534 

Diplomatic  relations 537 

Effects  on  persons  and  their  property 540 

General  effects 537 

General  rules  concerning  exercise  of  rights  of  war 543 

International 533 

Laws  of — Sanction v 

Military  powers — martial  law 539 

Municipal  legislation  in  war  time 540 

Treaties 538 

When  does  it  exist  in  fact 536 

When  justifiable 532 

War,  civil 130 

War  damages 722 

War,  end  of 715 

Amnesty 719 

Cessation  of  hostilities 718 

Peace  preliminaries 715 

Prisoners  of  war 719 

Re-establishment  of  rights  of  sovereignty 720 

Rules  respecting  present  state  of  possession 721 

Treaties  suspended  during  war 719 

Treaty  of  peace 716 

War  damages 724 

War,  exercise  of  rights  of: 

Belligerents 548 

Persons  attached  to  service  of  army 553 

Regular  militia 549 

Volunteers 551 

War,  on  land: 

liomljardment 566 

Deserters 563 

Flags  of  truce 559 

Guides 559 

Hague  Convention  of  1907 658 

Journalists  and  correspondents 561 

Lawful  and  unlawful  means  of  attack  and  defense 554,  564 

Military  oc(nii)ation 569 

Rights  of  belligerents  against  persons  not  of  the  army 561 

Rights  of  prisoners  of  war 557 

Sacking  or  pillage 568 

Siege 564 


750  INDEX 

[  References  are  to  pages  ] 

War,  on  land — Continued. 

Spies 557 

Stratagems  and  tricks 568 

War,  maritime — acts  of  hostility I 602 

Bombardment 604 

Hague  Convention  of  1907 662 

Limitations  upon  right  of  attack 611 

Present  lawful  means  of  attack 603 

Submarine  cables 609 

Unlawful  means  of  attack 608 

Unlawful  stratagems 611 

War  of  secession 132 

War  vessels: 

Criminal  jurisdiction 194 

Wounded  and  sick:  see  Prisoners  of  War. 

Writers,  opinions  of 87 


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